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CHIRON HEALTH, INC.
TERMS OF SERVICE AGREEMENT
 

These Telemedicine Platform Services Terms and Conditions (“Terms”) together with the online order form (“Order Form”) submitted in connection herewith and the documents referenced herein create a legally binding agreement (the “Agreement”) between Chiron Health, Inc., a Delaware corporation (“Chiron Health”) and the entity or (if applicable) individual (“Provider”) that submitted the Order Form. By signing up with Chiron you are entering into the Agreement and you agree to be bound by its terms and conditions.  Please read the Agreement carefully and do not sign the Agreement or access the Chiron Platform or use the Telemedicine Platform Services if you are unwilling or unable to be bound by the terms of the Agreement. The parties agree as follows:

  1. Engagement. Provider hereby engages Chiron Health as an independent contractor to provide administrative and technological support services described herein and in the Order Form ("Telemedicine Platform Services"), which are designed to facilitate Provider’s delivery of Telemedicine Medical Services (defined below). Provider’s “Telemedicine Medical Services” include, without limitation, the delivery of medical care by Provider to a patient (“Patient”) physically located at another site through the use of advanced telecommunications technology that allows Provider to remotely see and hear the Patient in real time.
  2. Chiron’s Responsibilities. Subject to the terms and conditions of the Agreement, Chiron Health agrees to use commercially reasonable efforts to provide the following Telemedicine Platform Services, in each case:
    1. Telemedicine Platform. Access to a web-based platform (“Chiron Platform”) to (i) Provider and Practitioners (defined below) to connect such individuals with Patients at other locations via video conference, and (ii) Provider’s non-Practitioner employees and contractors (together with Practitioners, “Staff”) to perform administrative and other non-Telemedicine Medical Services tasks.
    2. Training and Education. Orientation, training, and education materials to Provider and Provider's Staff.
    3. Management and Administration Services. Administrative support to Provider and its Staff that may be required from time-to-time by Provider for its management and administration of Telemedicine Medical Services, including:
      1. Reimbursement, including, information regarding third-party payor requirements and billing and collection for Telemedicine Medical Services;
      2. Notice and/or consent requirements for Provider relating to the provision of Telemedicine Medical Services;
      3. Compliance, including, coordination with Provider regarding applicable laws, rules, regulations and standards imposed by licensing and accreditation bodies; and
      4. Operation of a toll-free customer support line to provide technical and administrative assistance to Provider.
    4. Other Support Services. Other support services as may be requested by Provider from time-to-time and as shall be mutually agreed upon by the parties.
  1. Provider’s Responsibilities. Provider is, and will remain, solely responsible for: (a) the provision of Telemedicine Medical Services and all other professional medical services and aspects relating to Provider's practice of medicine (for the avoidance of doubt, Telemedicine Medical Services shall be performed by Provider for appropriate visits as determined in Provider's, or Practitioner’s, as applicable, sole professional judgment), (b) documenting the Telemedicine Medical Services in Provider's clinical records, (c) billing and collecting for Telemedicine Medical Services, (d) providing notice to and/or obtaining consent from any third-parties relating to the provision of Telemedicine Medical Services through the Chiron Platform, (e) ensuring the Chiron Platform is used in accordance with applicable instructions, training materials and other online that may be made available by Chiron Health from time to time, (f) obtaining and maintaining—both the functionality and security of—all information technology software solutions and related services necessary to connect to, access or otherwise use the Chiron Platform and the Telemedicine Platform Services, and (g) complying with applicable laws, rules, regulations and standards imposed by government health care programs and other payors, licensing agencies and applicable accreditation bodies, including, without limitation, with respect to the provision of Telemedicine Medical Services. 
  2. Compensation. Provider shall compensate Chiron Health in accordance with Chiron Health's rate schedule in the Order Form or an alternative fee structure agreed upon by the parties in writing. The parties acknowledge and agree that this compensation is exclusive of any taxes and represents the customary charge for telemedicine support services and is based on the fair market value for the Telemedicine Platform Services rendered.  Unless otherwise provided in the Order Form, Provider shall pay Chiron Health for services rendered on a monthly basis by credit card or debit card in US dollars. Provider hereby authorizes Chiron Health to charge any such card for all amounts due hereunder, and if Provider elects to collect fees from Patients via credit card, Chiron may retain (as reimbursement) any applicable credit card processing fees (expected to be at the rate of 2.9% of the transaction value plus $0.10 per transaction processed, but subject to change based on underlying fees) and any chargebacks applied to Provider’s account. If any amounts owed to Chiron Health are past due, Chiron Health may, at its discretion, and in addition to other remedies it may have, (a) charge a fee on the unpaid balance at the lesser of 1.5% per month or the maximum lawful rate, and (b) suspend provision of the Telemedicine Platform Services.
  3. Chiron Reimbursement Guarantee. Chiron Reimbursement Guarantee. A “Reimbursable Claim” is an insurance claim for reimbursement, (i) arising directly out of Provider’s performance of Telemedicine Medical Services during the term of this Agreement (ii) utilizing the Chiron Platform, (iii) that Chiron Health has determined is eligible for telemedicine reimbursement, and (iv) that has been properly submitted by Provider to an eligible insurance carrier whose network Provider is a member of at the time the applicable Telemedicine Medical Services are provided. “Required Documentation” means an Explanation of Benefits (EOB) and written documentation from the insurance carrier specifically citing telemedicine as the reason for denial. The “Request Window” means the forty-five (45) day period following the date the applicable Telemedicine Medical Services were provided to the Patient.

    If any Reimbursable Claim is denied by the applicable insurance carrier on the basis that such Reimbursable Claim is not eligible for telemedicine benefits (“Denied Claim”), Provider shall provide Chiron Health with the Required Documentation within the Request Window. If Chiron Health, in its reasonable discretion, determines a Denied Claim, through any number of resubmissions to the applicable insurance company, may be resolved or otherwise accepted, in whole or in part, Provider shall cooperate with Chiron Health (including, by promptly responding to inquiries; providing all information, documentation and assistance reasonably requested; and resubmitting such Denied Claim) to resolve such Denied Claim. If a Denied Claim is not able to be resolved through resubmission, Chiron Health shall pay Provider the lesser of (a) the allowable amount of the claim as contracted with the insurance carrier, or (b) fifty dollars ($50), less any payment collected from the patient for the telemedicine visit.

    In any given month, Chiron shall not be obligated to reimburse any amounts under this guarantee related to Telemedicine Medical Services performed in that month exceeding the fees paid by Provider to Chiron Health for Telemedicine Support Services in that same month (exclusive of credit card processing fees and taxes paid, if any).

  4. Platform.
    1. Restrictions on Use. Provider and Staff must use the Chiron Platform solely for its intended purposes in accordance with the Agreement. Provider may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Chiron Platform, or make it available to any third party, other than as expressly set forth in the Agreement. Provider and Staff must not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Chiron Platform, or any part thereof.
    2. Changes to Platform. Chiron Health may, in its sole discretion, make any changes to the Chiron Platform that it deems necessary or useful to (i) maintain or enhance (A) the quality or delivery of Chiron Health’s products or services to its customers, (B) the competitive strength of, or market for, Chiron Health’s products or services, (C) the Chiron Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
  5. Proprietary Rights. Except as expressly set forth in the Agreement, Chiron Health retains and reserves all right, title and interest in and to (a) the Chiron Platform and the Telemedicine Platform Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Telemedicine Platform Services, and (c) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Provider acquires any right, title or interest in any Services IP, Provider hereby irrevocably assigns all of its right, title and interest in such Services IP to Chiron Health. If Provider, submits comments, suggestions, or other feedback regarding the Chiron Platform or the Telemedicine Platform Services (“Feedback”), Provider hereby grants Chiron Health a perpetual license to use and otherwise exploit such Feedback for any lawful purpose. In addition, to the extent Chiron Health and a Patient and/or any Staff directly enter into an end user service agreement and/or privacy policy, Provider acknowledges that such Chiron Platform users may grant Chiron Health additional rights. Additionally, Chiron Health may identify Provider as a customer, and use Provider’s logo and trademark, in Chiron Health’s promotional materials.
  6. Provider and Patient Data.
    1. HIPAA and PHI. Chiron Health acknowledges and agrees that it is a “Business Associate” as such term is defined under the Health Insurance Portability and Accountability Act of 1996, and associated regulations as amended from time to time (“HIPAA”). Furthermore, each party acknowledges and understands that the Chiron Platform requires the use and disclosure of protected health information (“PHI”) as defined under HIPAA. By executing the Agreement, the parties agree to the terms of Chiron Health’s business associate agreement (“BAA”), available at http://www.chironhealth.com/baa that is hereby made part of and incorporated by reference into the Agreement. If a conflict exists between the terms and conditions of the Agreement and those of the BAA, the terms and conditions of the BAA will control with respect to the treatment of PHI. Unless expressly provided otherwise in writing, each party shall only use PHI as authorized under the Agreement and in accordance with the BAA. Provider hereby grants a perpetual non-exclusive, transferable, sublicensable, royalty free world-wide license to Chiron Health to use PHI on an anonymized and de-identified basis consistent with 45 CFR 164.514(b) to the fullest extent allowed under law.
    2. Non-PHI Data. As between Chiron Health and Provider, Provider owns all right, title, and interest in and to any non-PHI data that is collected by Chiron Health from Provider or its Staff, and in connection with their use of the Telemedicine Platform Services (“Provider Data”). To the fullest extent permissible under applicable law, Provider grants to Chiron Health a perpetual non-exclusive, transferable, sublicensable, royalty free world-wide license to use Provider Data (i) to provide the Telemedicine Platform Services, and (ii) as necessary to monitor and improve the Chiron Platform. Additionally, Provider grants to Chiron Health a perpetual, non-exclusive, transferable, sublicensable, royalty free world-wide license to use Provider Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such data (“Blind Data”). Notwithstanding anything in the Agreement to the contrary, to the extent Chiron Health collects or generates Blind Data, such Blind Data will be owned solely by Chiron Health and may be used for any lawful business purpose without a duty of accounting or obligation; provided, such Blind Data does not identify the source of such data.
  7. Term.
    1. Effective Date. The terms of the Agreement will become effective upon submission of the Order Form.
    2. Start Date. Billing cycle will commence fourteen (14) days from the Effective Date.
    3. Term. Either party may terminate this Agreement at any time for any reason by providing notice to the other party.
    4. Survival. Sections 6(a), 7, 8 (solely with respect to accrued license rights in PHI, Provider Data and Blind Data), 9(d) and 11–15 of these Terms will survive any expiration or termination of the Agreement.
  8. Representations and Warranties.
    1. Mutual Representations. Each party represents (i) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under the Agreement, and (ii) the execution of the Agreement by its representative who submitted the Order Form has been duly authorized by all necessary corporate or organizational action of such party.
    2. Chiron Health Representations. Chiron Health represents and warrants that it will (i) provide the Telemedicine Platform Services in a professional and workman like manner, and (ii) maintain administrative, physical, and technical safeguards designed to protect the security and confidentiality of PHI.
    3. Provider Representations. Provider represents and warrants to Chiron Health that Provider’s physician, licensed therapist and other licensed health care practitioner employees and contractors (each a "Practitioner") are duly licensed without restriction to practice medicine, and are not (i) currently excluded, debarred, or otherwise ineligible to participate in the Federal health care programs as defined in 42 USC § 1320a-7b(f); (ii) convicted of a criminal offense related to the provision of health care items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal health care programs; or (iii) under investigation or otherwise aware of any circumstances which may result in Provider or any Practitioner from being excluded from participation in the Federal health care programs. For the avoidance of doubt, these shall be ongoing representations and warranties during the term of the Agreement. Provider shall immediately notify Chiron Health of any change in the status of these representations and warranties. 
  9. Disclaimer. THE TELEMEDICINE PLATFORM SERVICES ARE PROVIDED “AS IS.” CHIRON, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED HEREIN OR THE ORDER FORM, CHIRON HEALTH DOES NOT WARRANT THAT ACCESS TO THE CHIRON PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, CHIRON HEALTH MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO THE CHIRON PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER HEREBY WAIVES ANY CLAIM AGAINST CHIRON HEALTH RELATING TO SUCH TECHNOLOGY SERVICES AND AGREES ANY SUCH CLAIM WILL, AS BETWEEN CHIRON HEALTH AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. ADDITIONALLY, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR IN THE ORDER FORM, PROVIDER ACKNOWLEDGES AND AGREES (A) NO PART OF THE TELEMEDICINE PLATFORM SERVICES CONSTITUTES THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER, AND (B) THE TELEMEDICINE PLATFORM SERVICES DO NOT ENSURE PROVIDER’S COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS.
  10. Limitation of Liability. EXCEPT WITH RESPECT TO PROVIDER’S OBLIGATION UNDER SECTION 13 AND BOTH PARTIES’ OBLIGATIONS UNDER SECTION 14, IN NO EVENT WILL (A) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY PROVIDER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), OR (B) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
  11. Indemnity. Provider shall defend Chiron Health against any claim, suit, demand, or action made or brought against Chiron Health (a) alleging that Provider’s or its Staff’s use of the Chiron Platform in violation of the Agreement, infringes, misappropriates or otherwise violates the intellectual property rights of any person, (b) relating to or arising from Provider’s relationship with any Patient, including Telemedicine Medical Services provided via the Chiron Platform, (c) relating to or arising from Chiron Health’s permitted use of PHI or Provider Data, or (d) relating to arising from Provider’s violation of laws or regulations. Provider shall indemnify and hold harmless Chiron Health from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) awarded against Chiron Health relating to any such claim, suit, demand, or action.
  12. Confidentiality. Each party acknowledges that it may receive information regarding the business, technology and finances of the other party, all of which information, when disclosed in circumstances of confidence that the receiving party should reasonably understand is confidential, is deemed to be “confidential information” for purposes of the Agreement. The parties acknowledge and agree that each party's confidential information is proprietary and integral to such party's business and agree to keep such confidential information confidential and not use or disclose such confidential information to any third person except as contemplated herein or as otherwise necessary to perform its duties hereunder. Notwithstanding the foregoing, confidential information does not include information that (a) is or became generally available to the public, (b) was in its possession or known by the receiving party prior to receipt from the disclosing party, (c) was rightfully disclosed to the receiving party without restriction by a third party, (d) was independently developed by the receiving party without use of any confidential information of the disclosing party, or (e) is required to be disclosed by law
  13. Other Provisions.
    1. Force Majeure. Chiron Health is not responsible nor liable for any delays or failures in performance relating to any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, war, acts or omissions of third party technology providers, riots, fires, natural disasters or acts of hackers, internet service providers or any other third party or acts or omissions of Provider or any of its Staff. Without limiting the generality of the foregoing or Section 11 of these Terms, the Chiron Platform and the Telemedicine Platform Services rely on third party technology and services. Any change to the products or services offered by any such third party provider may materially and adversely effect, or entirely disable, Provider’s use of or access to the Chiron Platform. Moreover, Provider acknowledges that Chiron Health cannot offer any additional or modified security procedures other than those put in place by Chiron Health’s hosting service provider(s).
    2. Assignment. Neither party may assign the Agreement or any of its rights or obligations thereunder without the prior written consent of the other party, and any such attempted assignment shall be void; provided, however, either party may assign the Agreement, and its rights and obligations thereunder, to an affiliate or in connection with any merger, reorganization, change in control, or sale of all or substantially all of its assets or stock.
    3. Entire Agreement. These Terms together with the Order Form and the BAA constitute the full and complete agreement and understanding between the parties with respect to Telemedicine Platform Services and may only be modified upon the mutual written consent of the parties.
    4. Severability. Nothing in the Agreement is intended to conflict with current law or regulation. If a term of the Agreement is inconsistent with such authority, then that term shall be invalid, but the remaining terms and conditions of the Agreement shall remain in full force and effect.
    5. Termination. Upon termination or expiration of the Agreement, neither party shall have any further obligations hereunder, except for obligations arising prior to the effective date of the termination and obligations, promises, or covenants contained herein which expressly or necessarily extend beyond the term of the Agreement. Immediately upon termination of the Agreement, Provider shall return to Chiron Health all documentation relating to Chiron Health or the Telemedicine Platform Services, and Chiron Health shall return to Provider all files, documents, and other data or information of or related to Provider in Chiron’s possession.
    6. Notice. Any notice required or permitted hereunder shall be in writing and effective upon documentation of receipt by the receiving party.
    7. Governing Law; Arbitration. The Agreement, and all disputes and actions arising under or related to the Agreement, shall (i) be governed by and construed in accordance with the internal laws (and not the law of conflicts) of Texas, and (ii) be submitted to confidential arbitration in Austin, Texas, except that, either party may seek injunctive relief in any state or federal court of competent jurisdiction. Arbitration under the Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under the Agreement shall be joined to an arbitration involving any other party subject to the Agreement, whether through class arbitration proceedings or otherwise.