CLIENT SERVICES AGREEMENT
Effective immediately upon clicking agreement (the “Effective Date”) at the website(s) located at or through https://www.auryhealth.com/ (collectively, the “Website”), this Client Services Agreement (this “Agreement”) is entered into by and between Aury Health, Inc., an Arizona corporation (“Aury Health”), and the client / patient who has clicked such agreement (“Client”). Aury Health and the Client may hereinafter each be individually referred to as a “Party” and collectively referred to as the “Parties”.
RECITALS
A. Aury Health is a management services organization (“MSO”), which provides management and administrative services in connection with dermatology and skin care services and related assessments, analyses, treatment programs and prescriptions (the “Subject Practice Area”).
B. In connection with such services, Aury Health, among other things, operates and manages third party hosts to create an online platform that allows patients and clients of Aury Health, including without limitation Client, to connect and interact with certain health care providers and practitioners (collectively, the “Providers”, and each a “Provider”) to enable each such patient or client of Aury Health, including without limitation Client, to obtain certain Professional Health Services in the Subject Practice Area, including without limitation Telemedicine or Telehealth. For the purposes of this Agreement: (1) “Health Care Professional” shall mean a duly licensed, registered or certified practitioner who furnishes Professional Health Services; and (2) “Professional Health Services” shall mean all clinical services for which a license, registration or certification is required by the Arizona Medical Board and Arizona Board of Nursing, as applicable, under Arizona Revised Statutes (A.R.S.), Title 32, Chapters 13 and 15, respectively, and Arizona Administrative Code, Title 4, Chapters 16 and 19, respectively, or by a corresponding applicable state Medical Board or Board of Nursing, respectively, under corresponding statutes and regulations in the state in which Client receives Services under this Agreement, each as related to the Subject Practice Area, including without definition Telemedicine or Telehealth; and (3) “Telemedicine” and “Telehealth” shall have the meanings set forth in the laws of the jurisdiction in which such Telemedicine and Telehealth services are provided to patients and clients of Aury Health, including without limitation those laws of the jurisdiction in which Client receives Services under this Agreement, specifically including without limitation Arizona Revised Statutes (A.R.S.) § 36-3601(3) (which defines “Telemedicine” as “the practice of health care delivery, diagnosis, consultation and treatment and the transfer of medical data through interactive audio, video or data communications that occur in the physical presence of the patient, including audio or video communications sent to a health care provider for diagnostic or treatment consultation”).
C. Aury Health has separately entered into one or more Provider Agreements (each a “Provider Agreement”, and collectively the “Provider Agreements”), which applicable Provider Agreements are hereby incorporated herein and integrated herewith by this reference, with certain therein-designated persons or entities, by the terms of which Aury Health has arranged for such Providers, or certain Health Care Professionals, including without limitation licensed physicians, licensed registered nurses, registered nurse practitioners, licensed nursing assistants, certified medication assistants, and licensed physician assistants employed or contracted by such Providers (each, a “Practitioner”), as independent contractors, each as appropriate and applicable, and each to the extent permitted under Applicable Law, to provide to perform for and provide to each patient or client of Aury Health, including without limitation Client, all Professional Health Services and Telemedicine or Telehealth, with Aury Health to provide and perform all corresponding non-clinical management and administrative services, including without limitation: (1) operation and maintenance of the Website and the corresponding portal (the “Portal”) through which such Professional Health Services and Telemedicine or Telehealth are performed and provided; (2) assignment of a Provider to each such patient or client of Aury Health, including without limitation Client; (3) coordination of communications between such assigned Provider and such patient or client of Aury Health, including without limitation Client; and (4) management, administration and maintenance of patient records of such patient or client of Aury Health, including without limitation Client. With respect to Subject Practice Area services received by Client, such services collectively performed and provided by Aury Health and the Provider assigned to Client (the “Assigned Provider”) shall herein be referred to as the “Services”, which Services shall in any event utilize methods of Telemedicine and Telehealth and shall include without limitation the following, each with respect to the Subject Practice Area, and each as set forth in greater detail in an order for Services submitted by Client and accepted by Aury Health (each, an “Order”, and collectively, “Orders”, each Order being incorporated in and integrated with this Agreement by this reference, with the understanding that in the event of any conflict or inconsistency between this Agreement and any Order, this Agreement shall govern and take precedence): (i) assessing Client’s physical conditions; (ii) synthesizing and analyzing data and understanding and applying principles of health care at an advanced level; (iii) managing the physical and psychosocial health status of Client; (iv) analyzing multiple sources of data, identifying alternative possibilities as to the nature of a health care problem and selecting, implementing and evaluating appropriate treatment; (v) making independent decisions in solving complex patient care problems of Client; (vi) diagnosing, performing diagnostic procedures, designing and recommending therapeutic programs, and prescribing and ordering therapeutic measures, including without limitation legend drugs, medical devices and controlled substances within the scope of the Assigned Provider’s practice, licensing, certification and registration on meeting the requirements established by the applicable Medical Board or Board of Nursing; (vii) referring Client to other appropriate Health Care Professionals if a situation or condition occurs that is beyond the knowledge and experience of the Assigned Provider and applicable Practitioner(s) or if the referral will protect the health and welfare of Client; (viii) delegating certain Services to a medical assistant as provided under Applicable Law, including without limitation A.R.S. § 32-1456; (ix) diagnosing and treating Client human responses to actual or potential health problems; (x) assisting Client to maintain or attain optimal health by implementing a strategy of care to accomplish defined goals and evaluating responses to care and treatment; (xi) establishing goals to meet Client’s identified health care needs; (xii) prescribing interventions to implement a strategy of care; and (xiii) evaluating responses to such interventions. Without limiting the foregoing, the Services shall include electronic correspondence, reporting and recommendations from the Assigned Provider and applicable Practitioner(s) based on photographs electronically submitted by Client (each a “Photographic Consultation”) and/or virtual electronic meetings between Client, on one hand, and such Assigned Provider and applicable Practitioner(s), on the other hand (each a “Virtual Visit”), each as set forth in the Order.
D. Client desires to retain Aury Health to make available and arrange for the provision of the Services, in coordination with an Assigned Provider, in Aury Health’s discretion under the Provider Agreements, to perform and provide Services as set forth in one or more Orders, and Aury Health is willing to perform the Services in coordination with such Assigned Provider, subject to the terms and conditions of this Agreement and the corresponding Provider Agreement.
E. Client and Aury Health desire to enter into this Agreement to set forth their mutual rights and responsibilities with respect to Aury Health’s provision of the Services to the Client, in coordination with the Assigned Provider under the corresponding Provider Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto hereby agree as follows:
Services Provided by Aury Health.
a. General. During the Term of this Agreement, Aury Health shall make arrangements to appoint an Assigned Provider, in Aury Health’s sole and absolute discretion, to perform and provide Services for and to Client as set forth in each Order submitted by Client through the Portal and accepted by Aury Health. No Services shall be performed or provided for or to Client except as set forth in an Order submitted by Client and accepted by Aury Health, and Aury Health shall have no duties or obligations to Client with respect to any Services unless and until such Services are set forth in an Order submitted by Client and accepted by Aury Health. For all purposes under and in relation to this Agreement, an Order shall not be deemed accepted by Aury Health unless and until Client provides and Aury Health receives and successfully negotiated payment for Services as set forth in such Order. Orders may also include certain skin care products (“Products”) provided by and through certain third-party pharmacies and other suppliers, each of which is a below-defined Aury Health Sub and subject to the terms and conditions applicable to Aury Health Subs. Such Products may be prescribed by an Assigned Provider and a corresponding Practitioner based upon a Photographic Consultation or a Virtual Visit; provided that it shall be Client’s sole decision whether to have such prescription filled under an Order, Client shall not hold Aury Health responsible for Client’s decision accordingly, and Client shall indemnify and hold harmless Aury Health for the same under Section 10, below. Orders of such Products are subject to Aury Health’s Shipping Policy, incorporated herein and integrated herewith by this reference, with the understanding that in the event of any conflict between this Agreement and such Shipping Policy, this Agreement shall govern and take precedence.
b. Coordination of Services. Aury Health shall coordinate the delivery of Services and Products provided to Client under this Agreement. Aury Health shall, at its sole expense, adequately maintain non-clinical staff as deemed appropriate by Aury Health for Aury Health’s rendering of the Services for Client in coordination with the Assigned Provider. The Assigned Provider and Client shall remain solely responsible, and Aury Health shall not be responsible for, the following: (i) any errors or problems in any information, documentation, hardware, software and computing environment of the Assigned Provider or any Practitioner employed or contracted by the Assigned Provider, on one hand, or Client, on the other hand, respectively, impacting the Services or the performance or effectiveness thereof; (ii) maintaining and providing any necessary operating environments in, by or through which the Assigned Provider and any Practitioner provides any Services to Client for Aury Health; (iii) errors caused by or attributable to any third party hardware or software procured independently by the Assigned Provider or any Practitioner, on one hand, or Client, on the other hand, respectively, other than through Aury Health by means of the Website and Portal, and configuration of such items as they relate to the Services; and (iv) interruptions in access to the Website and Portal or other downtime attributable to any Internet or information technology vendor of the Assigned Provider or any Practitioner, on one hand, or Client, on the other hand, respectively.
c. Aury Health Subs. In connection with the Services, Aury Health shall have the right, but not the obligation (except with respect to Assigned Providers and Practitioners under Section 1(d), below), in its sole discretion, to enter into written contract agreements and consulting agreements, including without limitation the applicable Provider Agreement(s) and software license agreements, with third party persons or entities of Aury Health’s choice, including without limitation the Assigned Provider, as well as third party hosts, licensors, subcontractors and consultants (collectively, the “Aury Health Subs”, and each an “Aury Health Sub”), any of which may or may not be affiliated or commonly controlled with Aury Health. Subject to the provisions of Section 1(d), below, Aury Health shall appoint, manage and oversee the Aury Health Subs, and each of them, in Aury Health’s sole and absolute discretion, and Aury Health may add, remove or replace Aury Health Subs as Aury Health deems fit; provided that Aury Health shall not be responsible for any acts or omissions of the Aury Health Subs, or any of them, except to the extent such acts or omissions result from the gross negligence or intentional misconduct of Aury Health. With the exception of such gross negligence or intentional misconduct of Aury Health, Client may not under any circumstances hold Aury Health responsible or liable for any act or omission of any Aury Health Sub, Client’s sole recourse therefor shall be limited exclusively to the appropriate Aury Health Sub, and Client shall indemnify and hold harmless Aury Health in relation to the same under Section 10, below. To the extent not prohibited under the corresponding agreement between Aury Health and the applicable Aury Health Sub, Aury Health hereby assigns to Client Aury Health’s rights and benefits under Aury Health’s agreement with such Aury Health Sub and in relation to such Aury Health Sub for such purpose
d. Professional Health Services. All Services consisting of Professional Health Services shall be performed exclusively by an Assigned Provider or corresponding Practitioner contracted or employed by such Assigned Provider, each of which is an appropriately licensed, certified and registered Health Care Professional, and each of which shall be considered an Aury Health Sub for the purposes of Section 1(c), above. Aury Health shall obtain appropriate proof of legally required licensing, certification and/or registration of any Health Care Professional that is utilized as an Aury Health Sub in the performance of Professional Health Services as a condition precedent to such utilization; provided that Aury Health is in no way responsible for such Health Care Professional maintaining such Health Care Professional’s license, certification and/or registration. With respect to any Professional Health Services, Aury Health shall exercise no control or supervision over the provision of such Professional Health Services. Rather, the Parties acknowledge and agree that the Assigned Provider will be solely responsible for and will have complete authority, responsibility, supervision and control over the provision of all such Professional Health Services performed for Client through the applicable Provider Agreement. Nothing contained in this Agreement will be construed in and of itself to permit Aury Health or any Aury Health Sub to engage in any regulated professional practice or activity for which a license, certification or registration is required under the laws of the jurisdiction in which Client receives any Services, including without limitation by any applicable state Medical Board or Board of Nursing.
e. Aury Health Technologies. Aury Health shall make available, through independently contracted third party hosts as Aury Health Subs, technologies, including without limitation the Website and Portal and corresponding software and technologies (collectively, the “Aury Health Technologies”) outside of Client’s location(s), each as reasonably adequate for Client to communicate with Aury Health and the Assigned Provider and applicable Practitioners and to receive the Services accordingly as provided in each Order submitted by Client and accepted by Aury Health. It is anticipated that to the extent permitted under applicable international, federal, state and local laws, statutes, regulations, rules, ordinances, orders, policies and procedures (collectively, “Applicable Law”), the Services, and any corresponding Professional Health Services, will be provided by the Assigned Provider and corresponding Practitioners to Client remotely using recognized Telemedicine and Telehealth techniques, and such Assigned Provider and corresponding Practitioners shall not be in Client’s physical presence. Aury Health shall provide the Aury Health Technologies as reasonably required to permit such remote provision of the Services, including without limitation duly licensed software, to provide for electronic communications, exchange of information (including without limitation file documents) and/or face-to-face video conferencing between and among the Assigned Provider, any applicable Practitioners, Client and Aury Health non-clinical staff, and each of them.
f. Use Restrictions. Client may not transmit through the Aury Health Technologies, including without limitation the Website and Portal, or any of them, and further including without limitation from any below-defined Client Account, any material that violates or infringes in any way upon the rights of others, which is unlawful, misleading, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, confidential or proprietary to third parties, or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any Applicable Law, which is inconsistent with the non-religious and non-political purposes of the Aury Health Technologies, or any of them. Client is also prohibited from using the Aury Health Technologies, or any of them, in any way that unreasonably restricts or inhibits any other user of the Aury Health Technologies, or any of them, from using or enjoying the Aury Health Technologies, or any of them. In addition, in accessing the using the Aury Health Technologies, including without limitation the Website and Portal, Client shall not:
(i) Engage in any illegal activities or use the Aury Health Technologies, or any of them, for any illegal purpose, including but not limited to, money laundering, terrorist financing, other illicit financial transactions, uses in violation of the CAN-SPAM Act of 2003, or uses in violation of any privacy laws;
(ii) Engage in behaviors or activities that have the intention or effect of artificially causing an item or collection to appear at the top of search results, or artificially increasing traffic, view counts, favorites or other metrics that Aury Health might use to sort search results;
(iii) Access, use or utilize the Aury Health Technologies, or any of them, from any country or jurisdiction sanctioned by the government of the United States or to facilitate transactions involving individuals or entities sanctioned by the government of the United States or located in sanctioned countries or jurisdictions;
(iv) Carry out any financial activities subject to registration or licensing, including but not limited to creating, selling or buying securities, commodities, options or debt instruments, or subject to restrictions on referrals for Professional Health Services, except in strict compliance with Applicable Law regarding the same;
(v) Engage in price manipulation, fraud or other deceptive, misleading or manipulative activities;
(vi) Buy, sell or transfer stolen items, fraudulently obtained items, items taken without authorization, counterfeit items, or any other illegally obtained items; or
(vii) Infringe upon or violate the intellectual property rights or any other rights of others.
g. No Harmful Materials. Client shall refrain from uploading, e-mailing, or otherwise transmitting to or through the Aury Health Technologies, including without limitation the Website and Portal, or any of them, and further including without limitation from any below-defined Client Account to any account of any other patient or client of Aury Health or to any account of any Provider, or any of them, any messages, programs, or other materials (including but not limited to Trojan Horses, malware, spyware, viruses, worms, and the like) that contain software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of or perform any invasive measures upon any computer software or telecommunications equipment, or any other items that could damage, disable, overburden or impair the functioning of any computing environment or of the Aury Health Technologies, or any of them, in any manner.
h. Content of Others.
(i) The Website and Portal contain information, data, software, photographs, graphs, videos, typefaces, graphics, audio and other material (collectively, “Aury Health Content”). Aury Health does not control the Aury Health Content supplied by parties other than Aury Health. Any opinions, advice, statements, services, offers, and/or other information that constitute part of Aury Health Content expressed or made available by third parties and not by Aury Health are those of the respective authors or distributors and not of Aury Health. In many instances, the Aury Health Content available through the Website and Portal represents the opinions and judgments of the respective party or user not under contract with Aury Health. Unless clearly, expressly and unequivocally indicated elsewhere, Aury Health does not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, suggestions, statistics or statements posted by parties other than Aury Health anywhere at or through the Website or Portal or elsewhere in connection with the Services, or any of them. Neither Aury Health, nor any entity of which any principal shareholders of Aury Health or any principal natural person holding a direct or beneficial interest in Aury Health (collectively, the “Aury Health Principals”, which Aury Health Principals include without limitation Alice Xiao Arellano and Punam Bhakta), or any of them, has been a member, partner or shareholder, nor any affiliate, parent, subsidiary, principal (including without limitation Alice Xiao Arellano and Punam Bhakta), member, shareholder, partner, officer, director, employee, agent, representative, predecessor, successor or assign of Aury Health, or any of the Aury Health Principals or any such entity, in each case excluding Client and any below-defined Client Parties (collectively, the “Aury Health Affiliates”, and each an “Aury Health Affiliate”), makes any warranties with respect to any of the data featured or mentioned on, at or through the Website or Portal unless provided directly by Aury Health. Any information or material placed online by parties other than Aury Health, including advice and opinions, are the views and responsibility of those who post the materials, and do not necessarily represent the views of Aury Health or any Aury Health Affiliate. Under no circumstances shall Aury Health or any Aury Health Affiliate be liable for any loss, damage or harm caused by Client’s reliance on information obtained through the Website or Portal unless provided directly by Aury Health. It is the responsibility of Client to evaluate the information, opinion, advice or other Aury Health Content available through the Website and Portal and not provided directly by Aury Health. Client agrees that Aury Health is not responsible, and shall have no liability to Client, or any third party, with respect to any information or materials transmitted by any party other than Aury Health, including without limitation defamatory, offensive or illicit material, or material that violates this Agreement, and Client accordingly unconditionally releases Aury Health and all Aury Health Affiliates from any and all liabilities and claims related to such information and materials posted by third parties.
(ii) With the use of the Website and Portal, Client might have the ability to link to other, non-Aury-Health Internet content and to upload their own non-Aury-Health provided content, programs and materials at or through the Website or Portal for use by Client. Client shall be solely responsible for obtaining access authorization from any and all content sources Client chooses to utilize that are not Aury Health, and Client shall indemnify and hold Aury Health and all Aury Health Affiliates in relation to the same under Section 10, below, without exception. Aury Health has no control over such third-party sites or the content within them. Aury Health cannot and does not guarantee, represent or warrant that the content contained in such third-party sites is accurate, legal or inoffensive. Aury Health does not endorse the content of any third-party site, nor does Aury Health warrant that such third-party sites will not contain viruses or otherwise impact Client computers. Aury Health does not assume any responsibility or liability for the actions, product, services, and content of all these and any other third parties. If Client chooses to link to or use a third-party website, Client should carefully review such third party’s privacy statement and other terms and conditions of use. By using the Website and/or Portal to search for or link to any third-party site, Client agrees and understands that Client may not make any claim against Aury Health or any of the Aury Health Affiliates for any damages or losses, whatsoever, resulting from Client’s use of or access to the Website and/or Portal to obtain search results or to link to any third-party site.
(iii) Compliance with Rules and Regulations/Non-Discrimination. Subject to the requirements of Section 1(c) and Section 1(d), above, Aury Health shall exercise reasonable efforts to ensure that the Services are delivered in accordance with (i) industry standards, (ii) Applicable Law, and (iii) to the extent reasonably practicable, Aury Health’s rules, regulations, procedures and policies as applicable to its independent contractors. Additionally, Aury Health shall exercise reasonable efforts to ensure that there will not be any discrimination against any Client seeking Services on the basis of race, color, religion, national origin, sexual orientation, handicap, age or sex, or any other unlawful or impermissible criteria under federal or state law or any other governmental authority with jurisdiction over the provision of the Services.
2. Responsibilities of Client.
a. Compensation.
(i) As a condition precedent to Aury Health and any Assigned Provider’s performance or provision of Services, Client shall provide payment for such Services as set forth in the corresponding Order, as completed by Client and accepted by Aury Health. Each Order shall indicate whether the corresponding Services shall include one or more Photographic Consultations or Virtual Visits and shall set forth the payment owed for the same. Unless otherwise specified in the Order, or otherwise waived or discounted in writing by Aury Health, in Aury Health’s sole and absolute discretion, Client shall owe and pay to Aury Health USD $49.00 for each Photographic Consultation and USD $75.00 for each Virtual Visit. In addition, each Order shall specify the Products to be provided to and paid for by Client, including without limitation those prescribed under Section 1(a), above. Unless otherwise specified in the Order, or otherwise waived or discounted in writing by Aury Health, in Aury Health’s sole and absolute discretion, compensation owed for such prescribed Products shall be a minimum of USD $75.00 and may be greater than such amount, as set forth in the Order.
(ii) Without limiting the foregoing, each Order, in Aury Health’s sole and absolute discretion, may provide Client the option to participate in certain membership programs, subscriptions and discounts for Services and/or Products. By way of example, Aury Health may, but is not otherwise obligated, to offer a discount of ten percent (10%) for prescribed Products if Client participated in an auto-refill program; provided that in the event Client participates in an auto-refill program, Client automatically shall owe and be charged for each refill unless and until Client cancels the corresponding prescription upon at least thirty (30) days advance notice. In any event, any discounts or special rates offered under an Order shall be set and may be reset by Aury Health, in Aury Health’s sole and absolute discretion; provided that Aury Health shall honor a discount or special rate for all Services and Products ordered prior to Aury Health’s written notice to Client of a change in such discount or special rate; and provided further that in no event and under no circumstance shall a discount or special rate ever be determined in a manner that takes into account the volume or value of any referrals or other business generated by Client.
(iii) By submitting an Order, Client thereby authorizes Aury Health to charge the credit card on file under the corresponding Client Account for Services in such amount, at such time and in such manner as set forth in the corresponding Order; provided that subject to the corresponding Provider Agreement, in the event the jurisdiction in which Client receives the Services requires that payment for corresponding Professional Health Services be made by Client only to a Health Care Professional and not to an MSO, the Assigned Provider shall bill Client for the Services through the Assigned Provider’s billing system, and Client shall make payment to the Assigned Provider accordingly as a condition precedent to Client’s entitlement to receive any of the corresponding Services; and provided, further, that payments for any and all Products referenced in an Order shall be made directly by Client to the Aury Health Sub identifies in such Order.
(iv) In the event Client fails to make a scheduled payment in a timely manner, including without limitation any charge to Client’s credit card on file under the Client Account being rejected or otherwise not posting, (A) Client shall owe to Aury Health simple interest at the rate of one and one half percent (1.5%) per month, prorated daily, or the maximum rate provided under applicable law, whichever is less, until paid in full, together with reimbursement of any administrative and processing charges Aury Health is required to pay in relation to rejection of a credit card charge, and (B) Client shall not be entitled to order or receive any further Services until payment, including such interest and reimbursement, is brought current.
(v) No federal or state health care funding or private insurance shall be utilized in providing payment for the Services to be performed under or in relation to this Agreement. All payments by Client shall involve private direct pay only.
(vi) Except as provided in this Agreement, any payment by Client under this Agreement and a corresponding Order shall operate as a release of any claims that Client may be entitled to make in relation to Services already received by Client that correspond to such payment.
b. Client Technologies. All equipment, materials and supplies, including without limitation any remote computing environment, hardware and software, through which Client shall receive the Services, including without limitation Telemedicine or Telehealth, at Client’s location(s), shall be the sole responsibility of Client. Specifically, notwithstanding anything to the contrary in this Agreement, including without limitation in Section 1, above, Client shall be exclusively responsible for obtaining and maintaining such technology other than the Aury Health Technologies (collectively, the “Client Technologies”) as reasonably required to permit Client’s remote receipt of the Services, including without limitation Telemedicine and Telehealth, and remote communications with the Assigned Provider, any corresponding Practitioners and any non-clinical Aury Health staff, such Client Technologies to include without limitation data lines, Ethernet ports, Internet access, computer terminals, cameras and equipment at Client’s location(s), to provide electronic communications, exchange of information (including without limitation file documents) and/or face-to-face video conferencing between or among the Assigned Provider, Practitioners directed, overseen and/or supervised by the Assigned Provider directly or indirectly, and Aury Health non-clinical staff, on one hand, and Client, on the other hand, as necessary for Client’s receipt of the Services.
c. Client Account. Client shall have the sole responsibility to input and maintain certain information and content (collectively, “Client Content”), in order for Client to use and utilize the Aury Health Technologies to receive the Services. In connection with the same, Client shall select an e-mail address as a username, together with a password, for Client to access and use the Aury Health Technologies, including without limitation the Website and Portal, through a separate account designated for Client (the “Client Account”). Client shall have the opportunity to change the e-mail address constituting Client’s username and to change Client’s password from time to time in accordance with Aury Health’s security policies and protocols, which Aury Health shall make known to Client with reasonable updates, which policies and protocols are incorporated herein and integrated herewith by this reference, with the understanding that in the event of any conflict or inconsistency between this Agreement and any such policies or protocols, this Agreement shall govern and take precedence. Client acknowledges and agrees that Client shall be responsible for maintaining the confidentiality of Client’s username and password, and Client shall be liable for any consequences that may result from their disclosure, including but not limited to any resulting access to, use of, or modification of the Aury Health Technologies, including without limitation the Website and Portal, and access to, integrity of and loss of Client’s data and Client Content. Client agrees to accept full responsibility for all activities that occur under the Client Account, and any related username and/or password. Aury Health shall exercise reasonable efforts to secure Client Content, and Client Content shall be maintained and managed at or through the Website and Portal in accordance with Aury Health’s Privacy Policy for the Website, which Privacy Policy is incorporated herein and integrated herewith by this reference. In the event of any conflict or inconsistency between such Privacy Policy and this Agreement, such Privacy Policy shall govern and take precedence. Except as otherwise expressly provided in this Agreement and such Privacy Policy, Aury Health shall not secure, maintain, test or alter Client Content in any way. Except as otherwise expressly provided in this Agreement and such Privacy Policy, Aury Health does not warrant that any Client Content will be maintained or up to date in any manner, and Aury Health shall not have any responsibility or liability for any failure or interruption of any Aury Health Technologies as a result of Client’s failure to maintain and update Client Content as appropriate. Specifically, Client shall remain solely responsible for the following, each as may affect any Services or Aury Health Technologies, and Client shall indemnify and hold harmless Aury Health in relation to the same under Section 10, below, without exception: (i) all errors or problems in Client Content impacting the Aury Health Technologies, including without limitation the Website and Portal, and/or the functionality of effectiveness thereof; (ii) maintaining and providing any necessary operating environments, including without limitation the Client Technologies, in or through which Client may access, utilize and apply the Aury Health Technologies, including without limitation the Website and Portal, in order for Client to receive the Services; (iii) errors caused by third party hardware or software or the configuration of such items as they relate to such access, utilization or application; and (iv) interruptions in access to the Aury Health Technologies, including without limitation the Website and Portal, or other downtime attributable to any Internet or information technology provider of Client or any of the Client Technologies. Aury Health reserves the right to refuse service, terminate the Client Account, or remove or edit content, including without limitation Client Content, in Aury Health’s reasonable discretion. Client’s username, account and password are non-transferable and non-assignable, except upon written agreement by Aury Health, in Aury Health’s sole and absolute discretion.
d. Medical Records. To the extent applicable, Client shall be responsible for providing Client’s medical records to Aury Health and the applicable Assigned Provider as needed and identified in a corresponding Order as a condition precedent to Client’s entitlement to receive and Aury Health’s obligation to provide the Services, or any of them, referenced in such Order. Client shall arrange for the same through one of the following methods as described in greater detail in the corresponding Provider Agreement: (i) Client shall cause Client’s existing Health Care Professional(s), and each of them, to disclose such medical records directly to Aury Health, subject to a corresponding Business Associate Agreement executed under Applicable Law, provided that in the event any such Health Care Professional fails to so disclose such medical records or to execute the corresponding Business Associate Agreement, Client shall disclose such medical records under item (ii), below, or else Client shall not be eligible to receive the Services, or any of them, under the corresponding Order; or (ii) Client shall procure such medical records from Client’s existing Health Care Professional(s) and then disclose such medical records to Aury Health by uploading such medical records through the Website and Portal, and Client shall execute a HIPAA Release form provided by Aury Health in connection with the same. In any event, Client shall execute the Release and Disclaimer form provided by Aury Health. Client shall only use the Website, Portal and Client Account approved by Aury Health to receive and share Client’s medical records. Client agrees to facilitate and comply with any reasonable action necessary to obtain mental records requested by Aury Health or an applicable Assigned Provider, including, but not limited to, signing any necessary personal or professional medical information release forms and providing physical copies of medical records via certified mail or electronic conversion.
3. Term and Renewal. The term of this Agreement (the “Term”) shall commence on the Effective Date, shall continue for an initial period of two (2) years, shall renew automatically for successive periods of one (1) year each, and shall continue in full force and effect unless and until terminated in accordance with this Section 3. Either Party may terminate this Agreement for cause upon material breach by the other Party of the other Party’s obligations under this Agreement, if such material breach remains uncured for more than thirty (30) days after the non-breaching Party gives written notice to the other Party of the breach, or in the event a reasonable cure is not practicable within such thirty (30) day period, if a reasonable cure is not commenced within such thirty (30) day period and continued diligently to completion; provided that such right to cure shall not apply to any payment obligations under Section 2(a), above. Notwithstanding the foregoing, either Party may, at any time, with or without cause, terminate this Agreement by providing the other Party at least ninety (90) days’ advance written notice.
4. Effect of Termination. Upon termination of this Agreement, neither Party shall be under any further obligation to the other Party, except for (a) obligations accruing prior to the date of termination, including, without limitation, payment of the compensation relating to the Services provided prior to such termination, and (b) obligations, promises or covenants set forth herein that are expressly made to extend beyond the Term, including without limitation those concerning intellectual property, confidentiality and indemnification, which provisions will survive termination of this Agreement.
5. Compliance with Legal Requirements.
a. General Compliance. The Parties hereto enter into this Agreement with the intent of conducting their relationship in full compliance with applicable state, local and federal law, including, but not limited to, the Healthcare Laws (as defined below). Notwithstanding any unanticipated effect of any of the provisions of this Agreement, no Party shall intentionally conduct himself/herself/itself under the terms of this Agreement in a manner that would constitute a violation of the Healthcare Laws. Any agreements between the Parties, including without limitation this Agreement, will be in writing, and the Parties will perform their respective obligations under such agreement only in accordance with the terms (t)hereof. For purposes of this Agreement, the term “Healthcare Law” or “Healthcare Laws” means applicable provisions, if any, of the Federal Social Security Act (including, but not limited to, the Medicare and Medicaid Anti-Kickback, Anti-Fraud and Abuse Amendments [42 U.S.C. §§ 1320a-7a and -7b], the Patient Protection and Affordable Care Act [Pub. L. No. 111-148, 124 Stat. 119 (2010)], the Federal Stark Law [42 U.S.C. § 1395nn]), any Arizona equivalents of the same (such as those under A.R.S. § 13-3713(A) as it relates to A.R.S. Title 11, Chapter 12, Article 7, and Title 36, Chapter 29) any and all other applicable state statutes and laws and any regulations promulgated thereunder, as well as the Health Insurance Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”), the HIPAA Standards for Privacy of Individually Identifiable Health Information and the Standards for Security of Electronic Protected Health Information, 45 C.F.R. Parts 160 and 164, and the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009, as all of these laws and regulations may now exist or hereafter may be amended.
b. Reformation upon Change in or Violation of Laws. In the event that subsequent to the date of this Agreement (i) the contents or validity of this Agreement are challenged by any governmental authority under Applicable Law, particularly any Healthcare Law, or (ii) that any Party hereto determines, based upon advice received from legal counsel, that a violation of Applicable Law, particularly a Healthcare Law, has occurred or will occur as a result of this Agreement, which violation would result in material adverse consequences to such Party, then such Party shall promptly notify the other Party with respect thereto. The Parties shall promptly use reasonable efforts to analyze, revise, reform and, to the extent necessary, restructure this Agreement and the relationship among the parties in order to fully comply with applicable law in a manner that is equitable to each party.
c. Failure to Reform. In the event the parties are unable to formulate a mutually acceptable plan to revise, reform and restructure this Agreement in order to fully comply with all Applicable Law within six (6) months after the parties initiate negotiations with respect to such plan, then this Agreement automatically shall terminate.
6. Confidentiality and Intellectual Property. In connection with this Agreement, Aury Health might provide, and Client might receive, certain confidential and proprietary information concerning one or more businesses, projects, products, materials, technologies, undertakings, operations and/or services of Aury Health, including without limitation the Services and Aury Health Technologies (collectively, the “Aury Health Proprietary Items”, but in each case excluding Client’s own proprietary information, such as Client Content, Client Technologies and Client patient health information protected under the Healthcare Laws, such patient health information to include without limitation the Client’s medical records held by Client’s other Health Care Professionals, of which Client shall be the owner or licensee, as applicable, and which hereinafter shall be collectively referred to as the “Client Proprietary Items”), which Aury Health deems to be highly proprietary and valuable. As a result, each subject to the applicable Healthcare Laws, Aury Health’s disclosure of such information to Client is conditioned upon satisfaction of the following duties and obligations:
a. Scope of Confidentiality Protection. For the purpose of this Section 6, “Aury Health Confidential Information” shall include all information, whether written or oral, that is prepared, uniquely known and/or provided by Aury Health and the Aury Health Affiliates, or any of them, including without limitation that related to the Aury Health Proprietary Items and performance and provision of the Services, or any of them, the Telemedicine and Telehealth features involved with the Aury Health Proprietary Items, Services and Products, or any of them, descriptions, compositions and features of the Aury Health Proprietary Items, Services and Products, or any of them, operational, logistical, financial, physical, legal and other practical requirements for the Aury Health Proprietary Items, Services and Products, or any of them, expected financial gains to be realized from the Aury Health Proprietary Items, Services and Products, or any of them, identities of parties potentially involved with the Aury Health Proprietary Items, Services and Products, or any of them, including without limitation actual and prospective patients, clients, vendors, licensors, third party hosts, contractors, consultants, distributors, suppliers, and other business partners of Aury Health and the Aury Health Affiliates related to the Aury Health Proprietary Items, Services and Products, or any of them, prospective impacts of the Aury Health Proprietary Items, Services and Products, or any of them, and other proprietary information related to the Aury Health Proprietary Items, Services and Products, or any of them, or Aury Health or any Aury Health Affiliate’s involvement with the Aury Health Proprietary Items, Services and Products, or any of them, that is not readily available to the public. For the purpose of this Section 6, “Aury Health Confidential Information” shall also mean (i) the contents of this Agreement, with the understanding that the existence of this Agreement and Client’s general obligation of confidentiality hereunder may and should be disclosed to all third parties who seek or might receive any Aury Health Confidential Information, (ii) all Aury Health Intellectual Property; (iii) non-public information related to any and all projects, products or services developed, performed or generated by or for the benefit of Aury Health or any of the Aury Health Affiliates, and (iv) proprietary information relating to the business, operations, methodologies, technologies, personnel, vendors, financial condition, examination or treatment of Aury Health or any of the Aury Health Affiliates, which is not generally known to the public, and which, under all of the circumstances, reasonably ought to be treated as confidential and/or proprietary. Aury Health Confidential Information shall include any information, whether or not labeled “confidential”, that by its nature could be deemed to be confidential, sensitive, privileged and/or proprietary information of Aury Health or any of the Aury Health Affiliates. Aury Health Confidential Information may be disclosed by Aury Health orally, visually, and in written form (including but not limited to electronic or other media). Orally disclosed Aury Health Confidential Information will be identified at the time of disclosure and reduced to writing within thirty (30) days of the disclosure, whereupon it shall be considered “Aury Health Confidential Information” for the purposes of this Section 6. Client shall disclose Aury Health Confidential Information, and Aury Health hereby grants to Client a non-exclusive, non-transferable, limited, fully paid, royalty free license to use any corresponding Aury Health Intellectual Property, solely as necessary to order, pay for, receive, use and receive the benefit of the Services and Products, each as set forth in this Agreement and any applicable Order, and to enforce this Agreement, and Client shall consider and utilize Aury Health Confidential Information solely for such purposes. This license does not include any resale or commercial use of any Aury Health Intellectual Property, the Website, the Portal, or any contents thereof, except as expressly set forth in this Agreement and an applicable Order; any collection and use of any materials posted by Aury Health at the Website, or any listings, descriptions, features, qualifications or related information of Aury Health at the Website; any derivative use of the Website or contents thereof or of the Portal; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, cookies or similar data gathering and extraction tools. Neither Client nor any below-defined Client Party may resell, sublicense, assign or otherwise allow the use of any Aury Health Confidential Information, Aury Health Intellectual Property, the Website, the Portal, or any contents thereof by or for the benefit of any other person, entity or group, except upon the express written approval of Aury Health, in its sole and absolute discretion.
b. Aury Health Intellectual Property. All intellectual property rights in any way related to any Aury Health Confidential Information provided by or through Aury Health or any of the Aury Health Affiliates or Aury Health Subs to Client is hereby acknowledged to remain in the exclusive ownership and control of Aury Health, the applicable Aury Health Affiliate, or the applicable licensor thereof (“Aury Health Licensor”), as appropriate, and any rights to or interests in such Aury Health Intellectual Property, or any permutation or derivation thereof, or any improvement thereto, are hereby fully disclaimed, waived and renounced by Client in favor of Aury Health, the applicable Aury Health Affiliate, or the applicable Aury Health Licensor, as appropriate. For the purposes of this Section 6(b), “Aury Health Intellectual Property” means all intellectual property owned, licensed (as licensee) or otherwise used by Aury Health and/or any of the Aury Health Affiliates, arising from or in respect of, or that might arise from or relate to, the following, whether protected, created or arising under the laws of the United States or any other jurisdiction, whether or not registered with any governmental authority: (i) all patents and applications therefor, including continuations, divisionals, continuations-in-part, reexaminations, or reissues of patent applications and patents issuing thereon (collectively, “Patents”); (ii) all trademarks (registered or common law marks), service marks, trade names, service names, brand names, trade dress rights, logos, domain names, Internet URL addresses, corporate names and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (collectively, “Marks”, including without limitation those concerning “Aury Health” and any permutation or derivation thereof); (iii) all copyrights and registrations and applications therefor, works of authorship (including without limitation the Materials) and mask work rights (collectively, “Copyrights”); (iv) all trade dress, trade secrets, discoveries, concepts, ideas, research and development, know-how, formulae, inventions, compositions, information technology service and solution materials, methods and equipment, manufacturing and production processes and techniques, technical data, data compilations, text information and materials, graphics, procedures, designs, drawings, specifications, databases, and other proprietary and confidential information, including without limitation client lists, patient lists, vendor lists, Provider lists, Practitioner lists, Product lists, third party host lists, software lists, supplier lists, pricing and cost information, and business and marketing plans and proposals, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Copyrights, Marks or Patents; (v) all software, including all source code and open source code, and all related documentation; (vi) all artwork, designs, images, photographs or other content displayed, illustrated or otherwise used on or in connection with the Website and Portal or any of Aury Health’s other websites, or any websites of any of the Aury Health Affiliates, or otherwise used in connection with Aury Health or any Aury Health Proprietary Items; and (vii) all other technology and know-how uniquely in the possession of Aury Health and/or any of the Aury Health Affiliates.
c. Restrictions Regarding Aury Health Intellectual Property. Neither Client, nor any personal relation, corporate entity, trust, predecessor, successor, assign, legal or financial advisor, contractor or consultant of Client, in any event excluding Aury Health, any applicable Aury Health Affiliate or any applicable Aury Health Licensor (collectively, the “Client Parties”, and each a “Client Party”), may use or utilize any Aury Health Intellectual Property for any purpose other than that provided under Section 6(a), above, or apply for a right in any Aury Health Intellectual Property for any reason, except upon the express written consent of an actually authorized representative of Aury Health in Aury Health’s sole and absolute discretion, whether or not any Aury Health Intellectual Property has been issued, registered, or in any other way afforded any rights by the United States Patent and Trademark Office, the United States Copyright Office, or other similar administrative agency. To the extent Client or any Client Party may claim any rights, direct, derivative or otherwise, related to any Aury Health Intellectual Property, Client hereby disclaims, and shall cause each Client Party to disclaim, such rights, and hereby assigns, and shall cause each Client Party to assign, such rights to Aury Health. Client agrees to execute and to cause each Client Party to execute, and in the alternative hereby grants to Aury Health, and shall cause each Client Party to grant to Aury Health, power of attorney to execute and record in Client’s stead, and in each Client Party’s stead as applicable, any and all documentation, including without limitation disclaimers and assignments of Aury Health Intellectual Property rights, as necessary to document publicly, legally, and officially the exclusive ownership of all Aury Health Intellectual Property, by Aury Health, the applicable Aury Health Affiliate, or the applicable Aury Health Licensor, as appropriate. Neither Client, nor any third party, may market, utilize, reuse or redistribute any Aury Health Intellectual Property, except as authorized hereunder or except as approved in writing by an actually authorized representative of Aury Health. Except as provided under Section 6(a), above, no license or other right of any kind in any Aury Health Intellectual Property is granted or otherwise provided to Client, to any Client Party or to any third-party in relation to this Agreement or Client’s access to, purchase, payment for or receipt of the Services or Products, or any of them. Neither Client nor any Client Party may frame or utilize any framing techniques to enclose any Aury Health Intellectual Property or Aury Health Confidential Information. Neither Client nor any Client Party may use any metatags or other hidden text utilizing Aury Health Intellectual Property.
d. Restrictions Regarding Disclosure of Aury Health Confidential Information. Client shall, and shall cause each Client Party to, hold Aury Health Confidential Information, whether delivered before or after the date hereof, in strict confidence and shall refrain from and cause each Client Party to refrain from: (i) providing, copying, disclosing, divulging or otherwise making available any Aury Health Confidential Information to any other person or entity without the prior written consent of an actually authorized representative of Aury Health, in Aury Health’s sole discretion; and (ii) removing or permitting to be removed from such Aury Health Confidential Information any notice indicating the confidential nature of, or Aury Health’s proprietary right in and to the Aury Health Confidential Information. Client shall, and shall cause each Client Party to, exercise at least the same degree of care and protection with respect to Aury Health Confidential Information that Client or such Client Party, as applicable, would exercise with respect to Client’s (or such Client Party’s) own confidential, sensitive, privileged and/or proprietary information, which in no event shall be less than the highest level of care for the industry. Client shall, and shall cause each Client Party to, take all precautions necessary to ensure that Aury Health Confidential Information shall not be, or permitted to be, shown, copied or disclosed to other parties, except as expressly provided in this Section 6. In the event of written consent to disclose Confidential Information to any other party, Client shall, and shall cause each Client Party to, advise that other party of his/her/its obligations with respect to the Aury Health Confidential Information, and have that party acknowledge in writing that the terms and conditions of this Section 6, and of Section 7 and Section 8, below, may be directly enforced by Aury Health against him/her/it as a condition to such disclosure. Client or the Client Party, as applicable, shall provide an original of such written acknowledgment to Aury Health, if so requested by Aury Health. In any event, Client or such Client Party, as applicable, shall disclose the Aury Health Confidential Information to the other only as necessary for the purposes authorized in writing by an actually authorized representative of Aury Health. In addition, Client or such Client Party, as applicable, shall ensure that confidentiality notices are included on copies of Aury Health Confidential Information so provided and shall account for the return or destruction of the Aury Health Confidential Information and all reproductions thereof, if so requested by Aury Health. Aury Health hereby consents to the disclosure of Aury Health Confidential Information by Client to any Client Party solely for the purposes set forth in Section 6(a), above, and expressly subject to the remaining requirements of this Section 6 and of Section 7 and Section 8, below.
e. Exception for Client Proprietary Items. Any Client Proprietary Items shall be deemed confidential information of Client, which Client may freely use and disclose as Client sees fit. Client shall be solely responsible for the accuracy, quality, integrity, reliability, appropriateness, legality and intellectual property ownership or right to use all of the Client Proprietary Items, and Client shall have indemnity obligations to Aury Health therefor and in relation thereto as provided in Section 10, below. Client represents and warrants that subject to the requirements of the Healthcare Laws: (i) Client has the appropriate authority, license or other rights to use and disclose all such Client Proprietary Items and to provide such Client Proprietary Items to Aury Health as contemplated in this Agreement; (ii) Client has and will maintain all rights, consents and approvals required to grant to Aury Health the rights to access, use, adapt, display and modify the Client Proprietary Items in accordance with this Section 6(e) and will upon Aury Health’s request provide proof of the same; and (iii) Client shall not with actual or constructive knowledge infringe upon the intellectual or other proprietary rights of any third party. Subject to the requirements of the Healthcare Laws, Client hereby grants to Aury Health a non-exclusive, irrevocable, transferable, perpetual, worldwide, royalty-free and fully paid-up license to access, use, adapt, display and modify any and all Client Proprietary Items that are collected or generated through use and utilization of the Website, Portal and Services, or any of them, for any legal purpose, including without limitation to provide and perform the Services and other obligations under this Agreement, to enforce this Agreement and any Provider Agreement, to analyze, transfer and use such Client Proprietary Items in an aggregated form, from which all personally identifiable information has been removed, for purposes of benchmarking system performance, preparing statistics, system metrics and other purposes, and to market the Aury Health Technologies and Services and Aury Health’s other technologies, services and endeavors, as well as the right to sublicense such rights to any holding provider and other third parties as necessary for Aury Health to do so or as may be reasonably necessary or appropriate in connection with the operation, maintenance, repair, updating, development, improvement or other activities of and through the Aury Health Technologies, and the marketing, manufacturing, distribution and sales of technologies, products and performance of services, functions and endeavors by Aury Health.
f. Other General Exceptions to Confidentiality. The foregoing obligations of confidentiality shall not apply to any Aury Health Confidential Information, which: (i) is or becomes available to the public through no act or omission of Client, any Client Party or any party in violation of the terms and conditions of this Section 6 or any other confidentiality or non-disclosure agreement; (ii) was already known by Client at the time of the disclosure by Aury Health, as evidenced by Client’s written records existing prior to the date of Aury Health’s disclosure; (iii) is lawfully obtained from a person or entity other than Aury Health or Client without any obligation of confidentiality or non-disclosure; (iv) is approved for release by Aury Health’s written authorization, but only to the extent of such authorization and subject to the further requirements set forth in Section 6(d), above; (v) is the subject of a testimonial approved by Aury Health, in Aury Health’s sole and absolute discretion; (vi) consists solely of referrals of Aury Health to potential other clients or patients; (vii) is required by law or regulation to be disclosed to any person, but only: (A) to the extent and for the purposes of such required disclosure and (B) after first giving Aury Health reasonable notice of such required disclosure and reasonable opportunity to contest such required disclosure; (viii) is disclosed in response to a valid order of a court or other governmental body or any political subdivisions thereof, but only to the extent of and for the purposes of such order, and only if Client first promptly notifies Aury Health of the order and permits Aury Health to seek an appropriate protective order; or (ix) is developed independently by or for Client by persons not having access to any Aury Health Confidential Information.
g. Reverse Engineering / Independent Development. Notwithstanding any other provision of this Section 6 or this Agreement, Client shall not (and Client shall not use any third party to), and Client shall cause each Client Party not to (and not to use any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discern the design, structure, internal workings, or other technology incorporated in any Aury Health Confidential Information.
h. Restrictive Covenant. In consideration of any Aury Health Confidential Information, which Client or any Client Party will receive or have access to, in connection with the Aury Health Proprietary Items, Client shall not, and Client shall cause each Client Party not to, use or utilize any Aury Health Confidential Information to: (i) directly or indirectly sell to, solicit or divert, or attempt to sell to, solicit or divert any customer, client or business affiliate of Aury Health for the purpose of or with the result of (A) competing with Aury Health with respect to the Aury Health Proprietary Items and the Services, or any of them, or any similar services or items, (B) altering, modifying, diverting or precluding the development of any Aury Health business relationship involving the Aury Health Proprietary Items and the Services, or any of them, or any similar services or items, or (C) otherwise interfering with business transacted with Aury Health with respect to the Aury Health Proprietary Items and the Services, or any of them, or any similar services or items; or (ii) directly or indirectly solicit or attempt to solicit, encourage, induce or entice Aury Health’s employees, contractors, suppliers or consultants to terminate or modify their employment, engagement or business relationship with Aury Health with respect to the Aury Health Proprietary Items and the Services, or any of them, or any similar services or items.
i. Obligation to Notify and Assist. Client agrees to notify Aury Health immediately of any unauthorized use or disclosure of any Aury Health Confidential Information related to Client’s possession or use of any Aury Health Confidential Information or any other violation of this Section 6, and Client agrees to cooperate in every reasonable way to help Aury Health regain possession of any misused or mis-disclosed Aury Health Confidential Information and prevent (or limit to the extent possible) its further unauthorized use or disclosure.
j. No Warranty. All Aury Health Confidential Information is provided “as-is, where-is”. Except as expressly provided in this Agreement, Aury Health makes no warranty, express or implied, regarding the timeliness, accuracy, performance or completeness of any Aury Health Confidential Information, except to the extent Aury Health knows or should in the ordinary course of business know of any inaccuracies, errors or omissions in such information, in which event Aury Health hereby warrants that it will exercise reasonable efforts either to correct or complete such information or to report comprehensively and fully all inaccuracies, errors and omissions in such information.
k. Survival. The provisions of this Section 6 shall survive termination of this Agreement, regardless of the cause of such termination.
7. Non-Circumvention. During the Term of this Agreement, and for a period extending three (3) years after the termination of this Agreement (the “Non-Circumvention Period”), during which the provisions of this Section 7 shall survive, Client hereby legally, wholly and irrevocably binds itself and guarantees to Aury Health that Client shall not, and Client shall cause each Client Party not to, directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, bypass or obviate Aury Health’s interest, or the interest or relationship between Aury Health and any third party, including without limitation any Aury Health Sub, for the purpose or with the effect of changing, decreasing or avoiding, directly or indirectly, payments of established or to-be-established fees, commissions, compensation or consideration, or the continuance of pre-established relationships, including without limitation as between Aury Health and one or more Providers, Practitioners, clients or customers, or to intervene in uncontracted relationships with existing or prospective Providers, Practitioners, manufacturers, suppliers, distributors, shippers, handlers, sellers, retailers, wholesalers, licensors, licensees, buyers, customers, clientele or intermediaries or to initiate any buy/sell or any transactional relationship that bypasses Aury Health in favor of any other individual or entity or in favor of a direct relationship or arrangement between Client and any other party, including without limitation any Aury Health Sub, in connection with the subject matter of this Agreement, the transactions contemplated under this Agreement, the Services, the Products, or any related future transaction, agreement, project or undertaking, including without limitation Client’s access to, purchase and receipt of any Services and/or Products. Such agreement not to circumvent shall at all times include without limitation actions, transactions, undertakings or efforts by Client or any Client Party, or by any person or entity acting or purporting to act for or on behalf of Client or any Client Party, to bypass Aury Health in order to contract or do business directly with any Provider or Practitioner or any manufacturer, supplier, seller, retailer, wholesaler, licensor, licensee, buyer, customer, client, contractor, consultant or other business relation of Aury Health, including without limitation any Aury Health Sub, with respect to any business, transactions undertakings or other matters in which Aury Health acts and serves, or is at any time up to and including the end of the Non-Circumvention Period, intended to act and serve, as a manager, administrator, intermediary, conduit or liaison between any parties, including without limitation the Services and/or Products, all such efforts being categorically prohibited under this Agreement and this Section 7.
8. Injunctive Relief. Client recognizes and agrees that a breach of any of the provisions of Section 6 and Section 7 of this Agreement will constitute immediate and irreparable harm to Aury Health’s valuable business relations, for which damages cannot be readily calculated and for which damages and other remedies at law constitute an inadequate remedy. In the event that Client or any Client Party attempts or threatens to violate any obligations under such Section 6 and Section 7, above, Aury Health shall have, in addition to any other remedies available to it, the right to injunctive relief enjoining any further breaches by Client or such Client Party, as the case may be, and notwithstanding the provisions of Section 12, below, Aury Health shall be entitled to seek such relief in any court of competent jurisdiction located in Maricopa County, Arizona, without the need to prove damages. Client hereby consents to the personal jurisdiction of such courts for such purpose and agrees that in the event such relief is granted, Client shall also pay Aury Health’s reasonable attorney’s fees in connection with the same.
9. Warranty Limitations; Limitations of Liability.
a. Limitation of Warranties. Any and all warranties provided by Aury Health under and in relation to this Agreement, the Orders, the Services, the Products, and the Aury Health Technologies are limited exclusively to those warranties provided by the Aury Health Subs, including without limitation the Assigned Provider through which the Services consisting of the Professional Health Services are performed, the pharmacy and/or supplier through which any Products are provided, and the respective third-party hosts through which the Aury Health Technologies are made available. To the extent not prohibited in such corresponding agreement, Aury Health hereby assigns to Client Aury Health’s rights and benefits under the corresponding Provider Agreement or Aury Health’s agreement or terms and conditions with such Aury Health Sub or third party host and in relation to such Assigned Provider, Aury Health Sub or third party host, subject to the terms, conditions and limitations thereof, for such purpose. Notwithstanding any in this Agreement to the contrary, all information and technologies are provided and made available by and through Aury Health on an “as-is, where-is” basis. Client hereby disclaims, discharges and waives all other representations and warranties of Aury Health and any and all Aury Health Affiliates, express and implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose and non-infringement of any third party rights. Without limiting the foregoing, Aury Health does not warrant that the Aury Health Technologies, or any of them, or any Services or support provided by or through Aury Health: (i) will meet the requirements or expectations of Client; (ii) will be secure, timely, uninterrupted or error-free; (iii) will operate in combination with any particular hardware, software, systems or data, including without limitation the Client Technologies; (iv) will operate in the combinations that Client may select for use, or that all errors therein will be corrected; (v) are free of viruses or other harmful components; or (vi) will generate data or other results that are complete or useful for Client’s purposes. It is the responsibility of Client to evaluate the completeness or usefulness of the Aury Health Technologies, the Services, the Products, and each of them. Likewise, Aury Health assumes no responsible whatsoever, and Aury Health shall not in any event or under any circumstances be liable in relation to, any decision of Client concerning Professional Health Services, which Professional Health Services to seek, the usefulness and weight of the Services and Products relative to any opinions rendered by any other Health Care Professional(s) of Client, or which Health Care Professionals and Products to utilize or which actions to take with in relation to client’s dermatological and skin health as a result of the Aury Health Technologies, the Services, or any of them. Client will remain solely and exclusively responsible for all Client decisions that in any manner could be considered as related in any way to Client’s health, including without limitation Client’s dermatological and skin health, as it may relate to the Aury Health Technologies, the Services, the Products, or any of them, it being understood, acknowledged and agreed that all such decisions, including without limitation how Client makes use of the Aury Health Technologies, the Services, the Products, or any of them, are those of Client and Client alone, made independently of Aury Health and any of the Aury Health Affiliates, and under no influence whatsoever of Aury Health and the Aury Health Affiliates, or any of them. Aury Health is merely acting as an MSO, and all Professional Health Services are provided exclusively by third-party Aury Health Subs who/that are Health Care Professionals independently contracted by Aury Health, with any responsibility and liability in relation to any Professional Health Services being limited to such Health Care Professionals, and any recourse of Client in relation thereto being exclusively as to such Health Care Professionals, and not as to Aury Health, and Client shall indemnify and hold harmless Aury Health and all Aury Health Affiliates in relation to the same under Section 10, below. Client agrees that no inconsistent statement made by a representative, employee or agent of Aury Health with respect to any representation, warranty or other term or condition of this Agreement, or with respect to the Aury Health Technologies, the Services, the Products, or any of them, or any other services, products, technologies, programs, features or data provided by or through Aury Health, shall supersede this Agreement.
b. Force Majeure. Neither Aury Health nor any Aury Health Affiliate will be responsible for any failure to perform functions in relation to this Agreement for reasons beyond Aury Health’s control, including without limitation the elements, acts of God, government regulation, political instability, acts of war, acts of terrorism, power outages, changes in law, strikes, disease, viruses, bacteria, epidemics, pandemics or health threats as declared by a government or health care agency, insurrections, riots, or political stability threats as declared by a government security agency. Aury Health will not be responsible for any claim by any third party in relation to the Services or Products that is not caused directly by Aury Health’s own negligence or wrongful acts or omissions.
c. Waiver of Consequential Damages. In no event will Aury Health be liable to Client for any lost profits or punitive, exemplary, consequential, special, indirect or incidental damages relating to this Agreement, unless caused directly by Aury Health’s reckless conduct or intentionally wrongful acts or omissions.
d. General Exceptions to Aury Health Liability. Except as otherwise expressly provided in this Agreement, in no event shall Aury Health be responsible or liable for: (i) any corruption, damage, loss or mis-transmission of data; (ii) the security of data during transmission via any internal networks or equipment of Client or via public telecommunications media or facilities; (iii) hardware, software or other items owned by Client, including without limitation the Client Technologies, or that are the property of a third party; or (iv) any other matters or items for which Client is expressly made responsible, or for which Aury Health is expressly declared not to be responsible under this Agreement. Client is solely responsible for determining whether the Aury Health Technologies, the Services, the Products, and each of them, are suitable for Client’s intended needs and uses.
e. Limitation of Liability. Except where Aury Health’s acts and omissions have constituted reckless conduct or intentional wrongdoing, the total aggregate liability of Aury Health under and in relation to this Agreement, the Aury Health Technologies, the Services, and any other matter covered by this Agreement, regardless of the form of action, whether arising out of breach of contract (including without limitation breach of warranty) or tort (including without limitation negligence, strict liability or otherwise), shall in no event exceed the amounts actually paid to date by Client under this Agreement, as they relate solely to the matters at issue. The limitations of liability under this Section 9(e) shall apply in all events and under all circumstances, with the only exception being to the extent such liability cannot be so limited or excluded under Applicable Law. In jurisdictions where any such limitations are prohibited or restricted, those that are not prohibited shall remain in full force and effect, and otherwise the maximum damages and total aggregate liability of Aury Health shall not exceed the statutory minimum or the minimum provided under Applicable Law.
f. Enforceable Allocation of Risks. The Parties acknowledge that they have reached agreement on compensation and other charges set forth in this Agreement in reliance on the disclaimers of warranty and limitations and exclusions of liability set forth in this Agreement and that the same form an essential basis of the bargain between the Parties. This Section 9 allocates the risks under this Agreement between Aury Health, on one hand, and Client, on the other, and are viewed by the Parties as an integral part of the business arrangement between them. The pricing and other terms and conditions of this Agreement reflect this allocation of risk and the limitations specified herein. Each Party has a duty to mitigate the damages and losses that would otherwise be recoverable from the other Party pursuant to this Agreement (including under any indemnity) by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages or losses.
g. Survival. The provisions of this Section 9 shall survive termination of this Agreement, regardless of the cause of such termination.
10. Indemnification. Client shall indemnify, defend, protect and hold harmless Aury Health and the Aury Health Affiliates, and each of them, from and against any and all actual or threatened claim, injury, damage, liability, cost, expense or loss, including without limitation reasonable attorneys’ fees arising out of, related to or resulting from: (a) Client’s receipt of the Services and Products, and Client’s decisions and actions as a result of such receipt, and/or (b) the alleged or actual acts, fault or omissions of Client; each except to the extent arising out of, related to or resulting from the negligent or otherwise wrongful acts or omissions of Aury Health or the failure of Aury Health to perform any of Aury Health’s duties or responsibilities under this Agreement, but in any event subject to the provisions of Section 9, above, notwithstanding anything to the contrary in this Section 10. Each Party shall notify the other immediately in writing of any matter for which indemnification is required under this Section 10. The Parties shall cooperate with each other in the investigation and disposition of any such matter, provided that nothing shall require either Party to disclose any documents, records or communications that are protected under the peer review privilege, the attorney-client privilege or the attorney work-product privilege. The provisions of this Section 10 shall survive termination of this Agreement, regardless of the cause of such termination.
11. Regulatory Compliance.
a. No Professional Health Services Authority. Aury Health shall have and shall exercise no control or supervision over the provision of clinical services or Professional Health Services performed and provided by the Providers. The Parties acknowledge and agree that the applicable Assigned Provider will be solely responsible for and will have complete authority, responsibility, supervision and control over the provision of all clinical services and Professional Health Services performed for Client, and that all analyses, diagnoses, treatments, procedures and other clinical services and Professional Health Services will be provided and performed exclusively by or under the supervision of appropriately licensed, registered, certified and qualified Practitioners, in such Assigned Provider’s sole discretion.
b. No Practice of Medicine, Nursing or Other Regulated Profession. Nothing contained in this Agreement will be construed in and of itself to permit Aury Health to engage in the practice of medicine or nursing or any activity for which a license, registration or certification is required under the laws of the jurisdiction in which Client receives Services, including without limitation by any applicable Medical Board or Board of Nursing. Aury Health’s functions as contemplated under this Agreement shall be limited to business operation, management and administrative functions, and not any clinical services or Professional Health Services, with respect to any of the Services.
c. No Referrals. Each of the Parties understands, acknowledges and agrees that none of the compensation hereunder is in exchange for or contingent upon the referral of (or any other arrangement for the referral of) any item or service offered by any Health Care Professional to, from, or through any party with any financial relationship with any such Health Care Professional.
d. Federal and State Health Care Programs. Each of the Parties understands, acknowledges and agrees that none of the compensation paid hereunder may be used for any services funded in whole or in part by a state or federal health care program, except as otherwise permitted and provided under Applicable Law.
12. Dispute Resolution.
a. Choice of Law. This Agreement shall be governed by the laws of the State of Arizona without regard to any conflict of laws principles that would require the application of the laws of a different state; provided that the performance of any Professional Health Services under and in relation to this Agreement shall be governed by the corresponding Applicable Law of the state in which Client receives such Professional Health Services; and provided, further, that nothing in this Section 12(a) shall limit the application of the Healthcare Laws.
b. Mediation. To the extent that the parties hereto are unable to resolve their disputes or controversies arising out of or relating to this Agreement or the performance, breach, validity, interpretation or enforcement of this Agreement, or any matters or transactions related to this Agreement or contemplated hereunder (collectively, “Disputes”), all such Disputes will be submitted to a mediator located in the Phoenix, Arizona metropolitan area, prior to any arbitration or other action. The mediator’s fees and expenses shall be shared equally by the parties, who agree to exercise their best efforts in good faith to resolve all disputes in mediation. Mediation begins on the date one Party sends written notice to the other requesting mediation and presenting in the notice the matter to be mediated. Mediation shall conclude when both Parties sign an agreement that resolves the subject of the mediation. If no agreement is reached within sixty (60) calendar days after the date of the original written notice, the mediation is considered unsuccessful.
c. Arbitration. In the event any Dispute cannot be settled by the parties informally or through mediation, the matter thereof shall be resolved by binding confidential private arbitration before a mutually agreeable arbitrator located in the Phoenix, Arizona metropolitan area. In the event the parties cannot agree on an arbitrator, the presiding judge of the Superior Court of Maricopa County, Arizona, shall decide who the arbitrator shall be. The decision of the arbitrator will be final and binding on the Parties hereto and their successors and assigns. The Parties hereto intend that this agreement to arbitrate be irrevocable. In any arbitration or other proceeding under or in relation to this Agreement, the prevailing party shall be entitled to reimbursement of his/its reasonable costs and attorney’s fees. Otherwise, the arbitrator shall have the discretion to enter any award permissible under applicable law, and such award shall be enforceable exclusively in a court of competent jurisdiction located in Maricopa County, Arizona.
13. Miscellaneous.
a. Entire Agreement. This Agreement, together with all documents incorporated herein and integrated herewith, including without limitation any corresponding Provider Agreements and Orders, as well as any releases executed by Client in relation to the Services, which releases are hereby incorporated herein and integrated herewith by this reference, constitutes the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior understandings and agreements relating to its subject matter.
b. Assignment; Delegation. Subject to Section 1(c) and Section 1(d), above, neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. This Agreement shall inure to the benefit of and be binding upon each Party signatory hereto, and such Party’s permitted successors and assigns.
c. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
d. Notices. Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified below or at such other address as the Party shall specify in writing. Such notice shall be deemed given upon personal delivery or verifiable electronic mail, or, three (3) days after the date of mailing, when sent by certified or registered mail, postage prepaid.
For Client:
At the address and e-mail address most recently registered in connection with the Client Account.
For Aury Health:
Aury Health, Inc.
Attn: Punam Bhakta
7000 North 16th Street, Suite 120-269
Phoenix, AZ 85020-5547
Email: [email protected]
All notices shall be deemed made upon receipt by the addressee as evidenced by written receipt or, in the case of a facsimile, as evidenced by the confirmation of transmission.
e. No Waiver. No failure or delay of one of the Parties to insist upon strict performance of any of its rights or powers under this Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law. No waiver of any provision of this Agreement, nor consent to any departure therefrom, shall be effective unless the same shall be in writing and signed by a duly and actually authorized officer or representative of each of Party hereto, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of a Party hereto to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. It is further agreed that any waiver, permit, consent or approval of any kind or character by any Party of any breach or default under this Agreement, or any waiver by such Party of any provisions or conditions of this Agreement, must be in writing and executed by a signatory with full actual power and authority to bind such Party and shall be effective only to the extent specifically set forth in writing, and that all remedies, either under this Agreement, or by law or otherwise afforded to each Party, shall be cumulative and not alternative.
f. Headings. The headings in this Agreement are for convenience only and shall not be used in interpreting the obligations of the parties under this Agreement.
g. Interpretation and Construction. This Agreement was executed only after review, comment, and negotiation between all Parties, and shall be construed as if drafted by all Parties. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
h. Amendment. This Agreement shall not be modified or amended except in writing signed by actually authorized signatories of all Parties hereto.
i. Number and Gender; Captions. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way affect, limit or amplify the provisions hereof.
BY CLICKING AGREEMENT AS PROVIDED AT THE WEBSITE, CLIENT UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT CLIENT HAS READ THIS AGREEMENT, AND EACH APPLICABLE PORTION THEREOF, TO COMPLETION, FULLY UNDERSTANDS ALL PROVISIONS HEREIN, UNDERSTAND THAT CLIENT HAS GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO THIS AGREEMENT, AND ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT FREELY AND VOLUNTARILY, AND WITHOUT ANY UNDUE INFLUENCE. CLIENT ACKNOWLEDGES THAT CLIENT HAS RECEIVED VALUABLE CONSIDERATION IN RELATION TO ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THIS AGREEMENT, WHICH CLIENT UNDERSTANDS TO BE A PREREQUISITE TO CLIENT’S ABILITY TO ORDER, PURCHASE, RECEIVE AND UTILIZE ANY OF THE SERVICES AND PRODUCTS. FINALLY, CLIENT UNDERSTANDS THAT THIS AGREEMENT AND ANY POLICIES AND DOCUMENTS INCORPORATED HEREIN AND INTEGRATED HEREWITH BY REFERENCE, SHALL BE OF FULL FORCE AND EFFECT AS TO ANY AND ALL SUCH ACTIVITIES, WITHOUT REGARD TO THE DATE OR TIMING OF ANY SUCH ORDER, PURCHASE, RECEIPT OR UTILIZATION. CLIENT CERTIFIES THAT CLIENT IS AT LEAST 18 YEARS OF AGE AND OF SOUND MIND AND FULL CAPACITY TO ENTER INTO AND BE BOUND BY THIS AGREEMENT, AND DOES SO KNOWINGLY, VOLUNTARILY AND WITHOUT ANY UNDUE INFLUENCE.
BY CLICKING AGREEMENT AS PROVIDED AT THE WEBSITE, CLIENT HEREBY UNDERSTANDS, ACKNOWLEDGES AND CONFIRMS THAT AT ALL RELEVANT AND APPLICABLE TIMES, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF CLIENT PROVIDED IN THIS AGREEMENT ARE ACCURATE AND COMPLETE, AND AURY HEALTH SHALL HAVE THE RIGHT TO RELY ON THE SAME IN FULL.
