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TERMS OF USE

(AND BUSINESS ASSOCIATE AGREEMENT WHERE APPLICABLE)

Last Updated 11/19/13

Welcome to TouchHealth. You are attempting access the website located at https://www.TouchHealth.com or any sub-site of https://www.TouchHealth.com/ (the "Site") provided by TouchHealth, Inc. ("TouchHealth").

If you are a "covered entity" according to HIPAA rules, then by using the Site, you are agreeing to the TERMS OF USE and the BUSINESS ASSOCIATE AGREEMENT. If you are a patient or non-covered entity, then by using this site, you are agreeing to the TERMS OF USE. You may also find a Privacy Statement here which explains how your data is protected.

By accessing the Site, you agree that you have read and understood the following terms of use (the "Terms") and agree to be bound by them. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, PLEASE EXIT THIS PAGE AND REFRAIN FROM ANY FURTHER USE OR ACCESS TO THE SITE. When using or accessing the Site, you agree that you must comply with any applicable third-party terms of agreement and any additional posted guidelines, rules, terms and conditions applicable to such use, which are hereby incorporated by reference into these Terms. These Terms are between you and TouchHealth, and not any other third party.

We may modify these Terms at any time by posting the revised Terms on the Site. You can determine when this Agreement was last revised by referring to the "LAST UPDATED" legend at the top of these Terms. Any modifications will be effective immediately upon such posting. Your use of or access to the Site after such modifications are posted will signify your acceptance of the modifications and your agreement to be bound by them. Notwithstanding the foregoing, any modifications to these Terms shall not apply to any dispute between us arising prior to the date on which we post the revised Terms that contain such modifications.

We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify, suspend or discontinue the Site; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that neither we nor any of our affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any service, content, feature or product offered through the Site.

DISCLAIMER; NOT A SUBSTITUTE FOR PROFESSIONAL HEALTH CARE OR ADVICE
THE SITE AND ANY INFORMATION CONTAINED ON OR PROVIDED THROUGH THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH NO WARRANTIES WHATSOEVER. YOUR USE OF THE SITE IS VOLUNTARY AND AT YOUR SOLE RISK.

THE HEALTH-RELATED INFORMATION AVAILABLE THROUGH THE SITE IS GENERAL IN NATURE AND IS NOT A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE. IT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED, AND SHOULD NOT BE USED, TO REPLACE THE ADVICE OF HEALTHCARE PROFESSIONALS. YOU ARE SOLELY RESPONSIBLE FOR YOUR RELIANCE ON THE SITE AND THE HEALTH-RELATED INFORMATION AVAILABLE THROUGH THE SITE, AND FOR ALL DECISIONS OR ACTIONS RESULTING FROM YOUR USE OF THE SITE AND ITS CONTENT, INCLUDING BUT NOT LIMITED TO ANY DECISION NOT TO SEEK OR REFRAIN FROM SEEKING ANY DIAGNOSIS OR TREATMENT. YOU ARE ALSO SOLELY RESPONSIBLE FOR YOUR DECISION TO USE THE SERVICES OF ANY PARTICULAR THIRD-PARTY PROVIDER. IF YOU HAVE SPECIFIC HEALTHCARE NEEDS, OR FOR COMPLETE HEALTH INFORMATION, PLEASE SEE A DOCTOR OR OTHER HEALTHCARE PROVIDER.

JURISDICTIONAL ISSUES

The SITE is controlled and operated by TouchHealth from the United States, and are not intended to subject TouchHealth or its affiliates to the laws or jurisdiction of any state, country or territory other than that of the United States. TouchHealth does not represent or warrant that the Site or any part thereof are appropriate or available for use in any particular jurisdiction other than the United States.

THIRD-PARTY PROVIDERS AND PAYORS

The Site provides users with access to electronic schedules, websites, and electronic health records of doctors, hospitals and other third-party healthcare providers ("Third-Party Providers"). Additionally, the Site provides users with the ability to exchange certain registration information with Third-Party Providers. TouchHealth provides certain services on behalf of Third-Party Providers to patients or prospective patients (including users of the Site) such as email campaigns, search engine optimization (SEO) and electronic directory services. TouchHealth also provides Third-Party Providers with the opportunity to create their own Profile Pages, mini-websites, eLearning libraries, and communicate through sMail. TouchHealth may charge Third-Party Providers a fee for the services and opportunities described in this section. Although TouchHealth reserves the right (but does not have the obligation) to monitor, it does not control the content contained within Profile Pages, mini-websites, sMail, or eLearning libraries, and assumes no responsibility or liability of any kind for any inaccuracies (including inaccuracies regarding available appointments, insurance accepted or network participation) contained therein, or for any qualifications, reference materials or other content available therein. TouchHealth allows you to submit and store the name of your insurance or benefit plan but does not provide any information regarding coverage available, healthcare costs, or doctors and hospitals participating in your plan. You should contact your insurance carrier or plan administrator ("Payors") for this information.

TouchHealth is not responsible for, and shall have no liability in connection with, any transactions or disputes between you and Third-Party Providers or Payors. If you have a dispute with a Third-Party Provider or Payor, you agree to release us (and our employees and agents) from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including actual, consequential and punitive damages), arising out of or in any way connected with the use of the Site or such disputes. You waive any provisions of any state, province, or country law that limit or prohibit a general release, including, if applicable, Section 1542 of the California Civil Code, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."

LICENSE

TouchHealth grants to you a limited, royalty-free, non-exclusive, personal and non-transferable, license to use the Site on a computer, laptop, a single personal mobile electronic device, or smart phone owned or controlled by you solely for your own personal, non-commercial purposes, subject to your compliance with these Terms. .

OWNERSHIP OF THE SITE

The Site (including any content made available through the Site) is the property of TouchHealth (or its licensors) and are protected by applicable intellectual property laws. You may utilize the Site only as permitted by these Terms. You may not, and will not permit any other party to: (1) modify, adapt, alter, translate or create derivative works of the Site; (2) use or merge the Site, or any component or element thereof, with other websites, software, databases or services not provided by TouchHealth; (3) sublicense, distribute, sell or otherwise transfer the Site to any third party; (4) use the Site as a service bureau, or lease, rent or loan the Site to any third party; (5) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code or structure of the Site; (6) interfere in any manner with the operation of the Site; (7) circumvent, or attempt to circumvent, any electronic protection measures in place to regulate or control access to the Site; (8) create a database by systematically downloading and storing the Site; (9) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather from the Site or reproduce or circumvent the navigational structure or presentation of the Site without our express prior written consent; or (10) use the Site for any commercial purposes. You agree not to develop, distribute or sell any software or other functionality capable of launching, being launched from or otherwise integrated with the Site. You may not remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Site.

TRADEMARKS

Any logo, trademark, servicemark, domain name, or trade name appearing on the Site, including "TouchHealth," ("Marks") and"sMail," ("Marks") whether registered or not, are the property of TouchHealth or their respective owners. You may not use any Marks without the express written permission of TouchHealth.

INFORMATION THAT YOU SUBMIT

Your submission of information through the Site is governed by TouchHealth's Privacy Policy. You represent and warrant that any information that you provide in connection with your use of the Site is and shall remain true, accurate and complete, and that you will maintain and update such information regularly. You agree that if any information that you provide is false, inaccurate, obsolete or incomplete, we may terminate your use of the Site.

For purposes of clarity, you retain ownership of any information, content and materials that you submit through the Site in connection with any publicly-available forums (each, a "Submission"). However, please note that we need certain rights to your Submissions to be able to make them available on the Site. As such, you hereby grant to TouchHealth and its service providers and designees a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation to edit, modify, translate and reformat), create derivative works of, transmit, publicly display and publicly perform such Submission, on any Site now known or hereafter developed.

This license is non-exclusive (so you can license your Submissions to others), worldwide (as the Internet is global in its reach), fully-paid-up and royalty-free (so that we do not have to pay you for posting your Submissions), sublicensable through multiple tiers (so that we can use our service providers and subcontractors to provide services).

For each Submission, you represent and warrant that you have all rights necessary for you to grant the licenses granted in this section, and that such Submission, and your provision thereof to and through the Site, comply with all applicable laws, rules and regulations. You further irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory. We request this waiver to help ensure that we have all the rights we may need to provide the services available through the Site.

CONTENT REDISTRIBUTION AND LICENSING

TouchHealth does not warranty content provided via the Site. All educational content recommended or provided here is redistributed or utilized at your discretion and you hold TouchHealth harmless and indemnify, as provided in the "Indemnification" section below) TouchHealth regarding any matters associated with any content provided on the SITE.

KRAMES SUBLICENSE AGREEMENT

TouchHealth is under license to redistribute licenses ("Sublicenses")to healthcare professionals, allowing those ("Sublicensees") to redistribute Krames® educational materials to patients. These Sublicenses are offered by TouchHealth to healthcare providers as either as a premium service, for which you pay a monthly fee, or under a promotional plan which includes either limited free access to Krames materials for a specific period of time. In either case, if you are a healthcare provider which is provided access to the Krames materials (or "Krames Products") on the SITE, then you are designated as a ("Sublicensee") of Krames Krames Products, and agree to the following Sublicense Agreement:

SUBLICENSE AGREEMENT

Krames educational materials are meant for the exclusive use of passing to the patient of the healthcare professional who is the Sublicensee using the TouchHealth SITE and systems. The Sublicensee agrees not to download and store any Krames Products with the intent of redistributing this content outside of the TouchHealth SITE.

If a Sublicensee or any or its users breach the Sublicense Agreement, TouchHealth shall enforce the Sublicense Agreement and reserves the right to revoke the Sublicense at any time.

Any modification made to the Krames Products, whether through the inclusion of additional content and instructions or the editing of the existing content, is performed by Sublicensee at [Sublicensee's] sole risk. Sublicensee represents and warrants that any and all modifications to the Krames Products will be performed by trained medical professionals and Sublicensee expressly assumes any and all liability related to such modification. Further, Sublicensee agrees to indemnify, defend and hold Krames StayWell, LLC, its shareholders, directors, officers, employees, affiliated companies and agents, harmless from any claim, demand, action, or lawsuit, and all resulting costs, liabilities, damages and expenses, including reasonable attorneys' fees, related to, arising from, or in connection with the modification of the Krames Products by Sublicensee, or its agents, employees, contractors, representatives, partners, or business associates. If Sublicensee elects to modify the Krames Products in any way, then Sublicensee shall maintain, at its expense, either (i) a Media Liability Policy or (ii) a General Liability Insurance Policy that provides specific coverage of claims arising out of use of content as provided herein, in either case of at least $3,000,000 for the Term of this Agreement and for a period not less than three (3) years after the completion of the Term of this Agreement. Such insurance shall list Krames StayWell, LLC as an additional insured and include an endorsement to cover bodily injury or property damage arising out of the use of content contemplated by this Agreement. Sublicensee shall provide TouchHealth (which TouchHealth will provide to Krames StayWell, LLC) with a Certificate of Insurance verifying insurance coverage specifically required above upon request. The parties agree that regardless of any modification made to the Krames Products by Sublicensee, the [Products and any derivative work thereof] remain the property of Krames StayWell, LLC.

MONITORING

You acknowledge and agree that (a) we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (i) monitor Submissions; (ii) alter, remove, or refuse to post or allow to be posted any Submission; and/or (iii) disclose any Submission, and the circumstances surrounding its transmission, to any third party in order to operate the Site; to protect TouchHealth and its respective employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, and the Site's users and visitors; to comply with legal obligations or governmental requests; to enforce these Terms; or for any other reason or purpose.

USER NAMES, PASSWORDS AND SECURITY

You may be required to register with TouchHealth to access certain services or areas of the Site. With respect to any such registration, we may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.
Your user name and password are for your personal use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the Site, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You are fully responsible for all interaction with the Site that occurs in connection with your password or user name. You agree to immediately notify TouchHealth of any unauthorized use of your password or user name or any other breach of security related to your account or the Site, and to ensure that you "log off"/exit from your account with the Site (if applicable) at the end of each session. To report unauthorized access or use of the
"support@touchhealth.com."

We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.

TERMINATION

TouchHealth may suspend or terminate your use of the Site if you fail to comply with the Terms. Such suspension or termination may result in the permanent deletion of your information or other previously available content.

USER ACKNOWLEDGEMENTS

You acknowledge and agree that you (and not TouchHealth) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Site, and for paying all charges related thereto. TouchHealth does not operate or control the Internet or your mobile connection, and therefore TouchHealth does not and cannot guarantee that the Site will be error or virus free, invulnerable to hackers or other unauthorized users, or always available.

INDEMNIFICATION

To the fullest extent permitted under law, you will defend, indemnify and hold harmless TouchHealth and its affiliates, and its and their officers, directors, employees, agents and licensors from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys' fees) arising out of or related to your use of the Site or any violation of these Terms by you.

EXCLUSIONS OF WARRANTIES

TouchHealth AND ITS AFFILIATES DISCLAIM ALL EXPRESS WARRANTIES, IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TouchHealth AND ITS AFFILIATES WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERROR, DELAY OR INTERRUPTION IN THE SITE. TouchHealth AND ITS AFFILIATES MAKE NO GUARANTEE, REPRESENTATION OR WARRANTY REGARDING THE TIMELINESS, RELIABILITY, ACCURACY, COMPLETENESS OR USEFULNESS OF ANY PORTION OF THE SITE, INCLUDING THE CONTENT CONTAINED ON THE SITE, OR REGARDING THE AVAILABILITY OR APPROPRIATENESS OF THIRD-PARTY PROVIDERS. YOU AGREE THAT YOUR ACCESS TO AND USE OF THE APPLICATIONS IS AT YOUR OWN RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE THAT YOU MAY INCUR THROUGH USE OF THE SITE, EXCEPT TO THE EXTENT THAT THE APPLICABLE LAWS OF A PARTICULAR JURISDICTION CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT.

LIMITATION OF LIABILITY

TouchHealth AND ITS AFFILIATES MAY NOT BE HELD LIABLE UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY OTHER DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF TouchHealth KNOWS OR SHOULD KNOW THAT OTHER DAMAGES ARE POSSIBLE OR THAT DIRECT DAMAGES ARE NOT A SATISFACTORY REMEDY. THE LIMITATIONS IN THIS SECTION APPLY TO YOU ONLY TO THE EXTENT THAT THEY ARE LAWFUL IN YOUR JURISDICTION.

TouchHealth MAY NOT BE HELD LIABLE FOR MORE THAN $100 UNDER ANY PROVISION OF THIS AGREEMENT.

THIRD-PARTY INFORMATION AND LINKS TO THIRD-PARTY WEBSITES (INCLUDING THIRD-PARTY PROVIDER WEBSITES)

The Site may contain information concerning Third-Party Providers and other third parties (sometimes referred to as "partners or advertisers") who may offer third-party products or services compatible with the Site. The Site may also provide links to third-party websites (including websites of Third-Party Providers) as a paid service to Third-Party Providers. Such information and links are provided for your convenience. TouchHealth AND ITS AFFILIATES DO NOT MONITOR, CONTROL OR ENDORSE, AND ARE NOT RESPONSIBLE OR LIABLE FOR, SUCH THIRD-PARTY PRODUCTS, SERVICES OR WEBSITES OR THE CONTENT CONTAINED THEREIN.

RELATIONSHIPS

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the use of the Site, whether between you, TouchHealth, its affiliates or any Third-Party Provider.

EXPORT CONTROLS

In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; (b) on any of the U.S. government lists of restricted end users. We may limit the Site's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

GOVERNING LAW

You agree that these Terms shall be construed in accordance with the laws of the State of California without regard to its conflict of laws provisions. Any claim or dispute arising in connection with your use of the Applications shall be brought exclusively in the courts of the State of California. Any cause of action or claim you may have with respect to the Site must be commenced within one (1) year after the cause of action or claim arises. TouchHealth's failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and TouchHealth nor any trade practices shall act to modify the Terms. TouchHealth may assign its rights and duties hereunder to any third party at any time without consent or notice to you.

MISCELLANEOUS

If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. These Terms, together with all policies referred to herein, are the entire Agreement between you and TouchHealth relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and TouchHealth relating to such subject matter.

QUESTIONS

You may contact TouchHealth at support@touchhealth.com with any questions, complaints or claims regarding the Site.

BUSINESS ASSOCIATE AGREEMENT

For entities covered by the HIPAA rule (covered entities).

This BUSINESS ASSOCIATE AGREEMENT ("BAA") is made in connection with the access to and use of the services of TouchHealth, Inc. a Delaware Corporation. ("Business Associate," or "us" or similar words), including website and the services and features provided therein (collectively referred to as "Content"), by you ("Covered Entity," or "you" or similar words). Your access to and use of the Services are conditioned on your acceptance of and compliance with this BAA. By accessing or using the Services you agree to be bound by this BAA.

You are a "covered entity" under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA") and, as such, must enter into so-called "business associate" contracts with certain contractors that may have access to certain patient medical information.

Pursuant to the terms of one or more agreements between the parties, whether oral or in writing (collectively, the "Agreement"), we shall provide certain services to you. To facilitate our provision of such services, you wish to disclose certain information to us, some of which may constitute Protected Health Information ("PHI") (defined below).

HIPAA requires you to enter into a contract containing specific requirements with us prior to the disclosure of PHI, as set forth in, but not limited to, 45 C.F.R. §§ 164.314(a), 164.502(e) and 164.504(e) and contained in this BAA.

1. Definitions:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

2. Specific definitions:

(a) Business Associate. "Business Associate" shall generally have the same meaning as the term "business associate" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean TouchHealth, Inc.

(b) Covered Entity. "Covered Entity" shall generally have the same meaning as the term "covered entity" at 45 CFR 160.103, and in reference to the party to this agreement, shall mean you.

(c) HIPAA Rules. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

(d) Registration. "Registration" shall mean the act of a Covered entity (or representative thereof) creating an account on the TouchHealth.com website and/or within TouchHealth connected software, whereby the Covered entity(or representative thereof) has elected to choose a checkbox indicating that the Covered entity agrees to the TouchHealth Terms of Use.

3. Obligations and Activities of Business Associate
Business Associate agrees to:

(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health nformation, to prevent use or disclosure of protected health information other than as provided for by the Agreement;

(c) Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware; This notification will be provided via the verified email address you have provided to TouchHealth, Inc. at registration of your account or an email address you have used to update your account. TouchHealth may also choose to notify you by mail to the primary business address listed on your account.

(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;

(e) Make available protected health information in a designated record set to the [Choose either "covered entity" or "individual or the individual's designee"] as necessary to satisfy covered entity's obligations under 45 CFR 164.524;

(f) Maintain and make available the information required to provide an accounting of disclosures to you as necessary to satisfy covered entity's obligations under 45 CFR 164.528;

(f) To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and

(i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

4. Permitted Uses and Disclosures by Business Associate

(a) We shall not permit the unauthorized or unlawful access to PHI, nor use or disclose PHI, other than as permitted or required by this BAA or required by law. Except as otherwise limited in TouchHealth Terms of Use Agreement or this BAA, we may access, use, or disclose PHI to perform its services as necessary for normal business and technical purposes for the provision of services by us to you as defined in marketing materials and Terms of Use agreement provided to you on the Touchhealth.com website. This includes administration of our business and technical assets such as servers, databases and websites, provided that this access would not violate HIPAA or HITECH or state laws; and for the proper administration of our business, provided that such access, use, or disclosure would not violate HIPAA, the HITECH Act, the HIPAA Regulations, or applicable state law if done or maintained by you. If we disclose Protected Information to a third party, we must obtain, prior to making any such disclosure, reasonable assurances from such third party that such Protected Information will be held confidential as provided pursuant to this BAA and only disclosed as required by law or for the purposes for which it was disclosed to such third party, and agreement from such third party to promptly notify us of any Breaches of confidentiality of the Protected Information, to the extent it has obtained knowledge of such Breach.

(b) Subcontractors and Agents. Any agents or subcontractors whom have access to PHI agree to the same restrictions and conditions that apply to us with respect to such PHI.

(c) Business associate may use protected health information for the proper management and administration of the business associate or to carry out the legal responsibilities of the business associate.

(d) Business associate may provide data aggregation services relating to the health care operations of the covered entity.

(e) Permissible Requests by Covered Entity. Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.

(f) Authorizations. Covered Entity shall obtain from individuals any applicable consents, authorizations, and other permissions necessary or required by law for Covered Entity and TouchHealth to fulfill their obligations under this Agreement.

(g) Restrictions. Covered Entity shall promptly notify TouchHealth in writing of any individual-requested restrictions in the Use or Disclosure of PHI, pursuant to any agreement by Covered Entity and/or required by Privacy Laws that may affect TouchHealth's ability to perform its obligations under this Agreement and/or the Services Agreement.

(h) Revocations. Covered Entity shall promptly notify TouchHealth in writing of any changes in, or revocation of, permission by an individual relating to the Use or Disclosure of PHI if such changes or revocation may affect TouchHealth's ability to perform its obligations under this Agreement and/or the Services Agreement.

(i) Indemnity. Both parties mutually agree to indemnify and hold each other harmless from and against all liability, losses, damages, claims, causes of action, cost or expenses (including reasonable attorneys' fees) that directly or indirectly arise from the act, omission, breach, or default of the indemnifying party, its agents, representatives, subcontractors, and/or employees.


5. Term and Termination.

(a) Term. The Term of this Agreement shall be effective as of the date of registration (i.e. the date the Covered entity created the account) at TouchHealth, and shall terminate upon terminating the agreement under Terms of Use or the date covered entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.

(b) Termination for Cause. Business associate authorizes termination of this Agreement by covered entity, if covered entity determines business associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within the time specified by covered entity. (c) Breach. Without limiting the parties' rights under this Agreement, if either party breaches its obligations under this Agreement, the non-breaching party shall provide the breaching party with notice and may provide an opportunity to cure the breach within thirty (30) days. If the breaching party fails to cure the breach after such notice and opportunity to cure, or if such cure is not possible within thirty (30) days, the non-breaching party may terminate this Agreement immediately upon written notice and without further legal action or declaration. If neither termination nor cure is feasible, the breaching party shall comply with applicable reporting requirements. If the breaching party is unable to comply or otherwise does not comply with the applicable reporting requirements set forth in Privacy Laws, the non-breaching party will comply with its obligations under that section.

6. Miscellaneous.

(a) Counterparts. This Agreement is executed between TouchHealth (Business associate) and Covered entity at the time the Covered entity registers for an account on TouchHealth.com and chooses to "Agree" to the Terms of Use.

(b) Entire Agreement. This Agreement and the Terms of Use, the consistent terms of which are incorporated herein, constitute the entire agreement between the parties and supersede all prior negotiations, discussions, representations, or proposals, whether oral or written, unless expressly incorporated herein, related to the subject matter of this Agreement.

(c) No Third Party Beneficiaries, except as otherwise provided in the Privacy Laws or this Agreement, there are no third-party beneficiaries to this Agreement.

(d) Independent Contractor. TouchHealth is, and at all times will be deemed to be an independent contractor and not an agent, of Covered Entity under this Agreement.

(e) Successors and Assigns. This Agreement will inure to the benefit of, and be binding upon, the successors and assigns of the parties. However, this Agreement is not assignable by any party without the prior written consent of the other parties.

(f) Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this Agreement shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by the parties to this Agreement.

IN WITNESS WHEREOF duly authorized representatives of the parties have executed this Agreement as of the effective Registration time and date.