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Healthy-TXT Voice Memo™ End User License Agreement

THIS APP IS NOT INTENDED FOR USE BY INDIVIDUALS UNDER 18 YEARS OLD.

This End User License Agreement (“Agreement”) sets forth the terms and conditions upon which you may download and use the Healthy-TXT Voice Memo™ software application, related services, and all updates, enhancements, and upgrades provided to you (collectively, “App”) by Healthy-TXT, LLC (“Healthy-TXT”) and/or its authorized distributors. “You”, “your”, “yourself” means you, as an individual, and the legal entity on behalf of which you are acting as the authorized agent or legal representative as identified by you during registration with the App, if applicable.

PLEASE READ THIS AGREEMENT CAREFULLY IN ITS ENTIRETY BEFORE USING THE APP. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE APP. THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT Healthy-TXT’S LIABILITY TO YOU. BY USING THE APP, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE PROVISIONS, DISCLOSURES, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE FAIR AND REASONABLE, AND YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THIS AGREEMENT IS VOLUNTARY AND IS NOT THE RESULT OF FRAUD, DURESS, OR UNDUE INFLUENCE EXERCISED UPON YOU BY ANY PERSON OR ENTITY.

  1. In General. The terms of this Agreement will govern the App and any software updates, enhancements, and upgrades that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. You agree to comply with all terms, conditions, and restrictions set forth in this Agreement. You acknowledge that any use of the App not in compliance with this Agreement invalidates this license and may be prosecuted to the full extent of the law. By downloading and using this App, you represent and warrant that you are at least 18 years old.
  1. Permitted Use and Restrictions.
  1. Grant of License and Reservations. Subject to the terms of this Agreement, Healthy-TXT grants you a limited, non-exclusive, revocable, non-transferable license to install and use the App and any future fixes, updates and upgrades provided to you, solely for use in connection with your provision of medical care to patients, including transmitting, accessing, managing, collecting, and displaying Patient Information (defined below). This App is licensed, not sold, to you by Healthy-TXT for use only under the terms of this Agreement. Healthy-TXT reserves all rights not expressly granted to you. The rights granted in this Agreement are limited to Healthy-TXT’s intellectual property rights in the App and do not include any other patents or intellectual property rights. You may own the media on which the App is stored, but Healthy-TXT retains ownership of the App itself.
  2. Eligibility. You must be 18 years of age or over to register with us or use the App.   If you are under the age of 13, you may not use the App. If you are the parent or legal guardian of a child under the age of 18, you may use the App on behalf of such minor child. By using the App on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child and that all references in this Agreement, the Privacy Policy, and any other terms of use to “you” shall refer to such child or such other individual for whom you have authorization to enter into this Agreement on their behalf, and you in your capacity as the parent or legal guardian of such child or as the authorized party of such individual. If you do not qualify under these terms, do not use the App. By using the App, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions set forth herein.
  3. Reverse Engineering. Except as expressly set forth in this Agreement, you agree not to reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies, create derivative works from, distribute or provide others with the App, in whole or part, or transmit or communicate the App over a network or to any third party. Further, you agree not to develop, sell, or distribute applications that are capable of launching, being launched from, or are otherwise integrated with, the App or Content accessed through the App without Healthy-TXT ‘s express written permission.
  4. Further Restrictions. You further agree not to use the App to do the following:
    1. Transmit, access, or communicate any data that you do not have the right to transmit under applicable Law (defined below), including the Health Insurance Portability and Accountability Act of 1996 as modified by the Health Information Technology for Economic and Clinical Health Act and all rules, regulations, and related laws and acts promulgated under and in connection therewith (collectively, “HIPAA”), under similar more stringent state laws, or under a contractual or fiduciary relationship;
    2. Transmit, access or communicate any data that infringes upon any patent, trademark, trade secret, copyright or other proprietary rights of any party;
    3. Transmit or communicate any data that contains software viruses or any other computer code, files, or programs designed, intended, or likely to interrupt, destroy or limit the functionality of any computer software or hardware, or any telecommunications equipment;
    4. Interfere with, disrupt, or circumvent the App;
    5. Intentionally or unintentionally violate any applicable local, state, national or international law, including securities exchange commission regulations, and any regulations, requirements, procedures or policies in force from time to time relating to the App; or
    6. Transmit or communicate any data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
  1. Patient Information. You acknowledge and agree that the App may be used to transmit, collect, access, manage, and display Patient Information. You acknowledge and agree that Patient Information related to your treatment of patients may be stored by Healthy-TXT and/or its licensees and service providers in connection with providing the App and its related services, as well as shared among other users of the App and its related services. You acknowledge and agree that the Patient Information stored by Healthy-TXT shall not serve as the system of record for any patient, personal representative of a patient, health care provider, any business associate of a health care provider, or any affiliates of the foregoing. You further acknowledge that the App may be used by you to share information with patients and their designated personal representatives, and for patients and their designated personal representatives to share information with other users of the App based submission of valid authorizations of recipients to Healthy-TXT. Healthy-TXT will rely on valid authorizations to share information with approved recipients. You agree that Healthy-TXT does not have any liability to you for any user errors, mistakes, or omissions in the recipient authorization process, whether intentional or unintentional, and that it is the obligation of the patient or their designated personal representative to prepare, submit and update valid authorizations. “PatientInformation” means, collectively, information and data related to the provision of health care to patients, their health status, medical records, and related information and documents, including consent to treatment forms, authorization to disclose medical information forms, Medicare forms, Medicaid forms, living wills, Directives to Physicians and Family or Surrogates, Medical Powers of Attorney, Out-of-Hospital Do-Not-Resuscitate Orders, Declarations of Mental Health Treatment, images, reports, and lab and test results, medical treatments performed by you and/or other Healthcare Providers, and other “protected health information,” as defined under HIPAA and similar terms as defined by state law. You agree that your provision and use of all Patient Information will be in compliance with HIPAA and all other applicable Law. Further, with respect to all Patient Information, you agree to abide by the terms and conditions of any Business Associate Agreement, attached herein as Exhibit A between Healthy-TXT and you or the entity or organization with which you are employed or otherwise affiliated (“Your Organization”).
  1. Medical Advice and Treatment. Healthy-TXT does not provide medical advice, diagnosis, or treatment. You acknowledge and agree that the App is merely a conduit of information related to patients and the provision of healthcare to patients by independent third party healthcare providers including yourself, physicians, physician assistants, nurses, paramedics, emergency care responders, other physician extenders, healthcare systems, healthcare facilities, or other providers of healthcare services (collectively, “Healthcare Provider(s)”). You acknowledge and agree that the Healthcare Providers are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of all medical services, advice, instructions, treatment decisions, and other professional health care services performed, and that all diagnoses, treatments, procedures, and other professional health care services will be provided and performed exclusively by or under the supervision of Healthcare Providers as they, in their sole discretion, deem appropriate. You further acknowledge and agree that Healthy-TXT does not provide or endorse any medical advice on or through the App, and no information obtained through the App can be so construed or used. Healthy-TXT will have and exercise absolutely no control, authority, or supervision over the provision of any medical services or other professional health care services. The use of all text, graphics, images, audio content, audiovisual content, other materials and any other information provided on or made available through the App, including all healthcare related information, instructions, advice, or other guidance, whether provided by you, Your Organization, other Healthcare Providers, or other third parties (collectively, “Content”) is solely your responsibility. Healthy-TXT will make all reasonable efforts in accordance with applicable laws and agreements to safeguard the integrity and availability of the Content. Further, when using the App, information may be transmitted over a medium that may be beyond the control and jurisdiction of Healthy-TXT and its suppliers. Accordingly, Healthy-TXT assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the App. Healthy-TXT does not recommend or endorse any specific therapies, treatments, tests, health care providers, procedures, opinions, or other information that may be transmitted through the App. Accordingly, you acknowledge and agree that you are solely responsible for all medical services, advice, instructions, diagnoses, treatments, procedures, and other services you provide in connection with using the App or otherwise.
  1. Registration. Upon registration, you agree to provide current, accurate, and complete information about you and Your Organization as is required to register to use the App and at other points as may be required in the course of using the App, including your complete legal name, street address, phone number(s), email address, and such other information as may be requested by Healthy-TXT (“Registration Data”). Further, you agree to maintain and update your Registration Data as required to keep it current, accurate, and complete. You agree that Healthy-TXT may store and use the Registration Data you provide in connection with your use of the App in accordance with the Privacy Policy (which is incorporated into this Agreement by reference). Healthy-TXT has the right, but not the duty, to confirm or otherwise verify or check, in its sole discretion, the truth and accuracy of any registration information at any time. Verification of your registration information, specifically, your name, address and/or tax identification number, against a third party database may be considered to constitute a “credit check” under certain laws. Healthy-TXT is not making, and will not otherwise make, any type of inquiry to any third party regarding any individual’s credit history and personal financial information without first obtaining such individual’s express authorization to do so. Healthy-TXT may terminate your rights to the entire App if any information you provide is false, incomplete or inaccurate.
  1. Third Party Technology. Any and all third party technology provided, made available, linked to, or otherwise accessible through the App (“Third Party Technology”) is provided solely as a convenience to you and is not under the control of Healthy-TXT. Healthy-TXT does not endorse, recommend, or otherwise make any representations or warranties with respect to any Third Party Technology. Healthy-TXT does not have any responsibility or liability to you for any Third Party Technology which you access and you use at your own risk. Further, you agree to comply with any and all terms and conditions applicable to the use of Third Party Technology and otherwise ensure that you have obtained all rights, licenses, and clearances that may be necessary to use such Third Party Technology.
  1. Third Party Websites. This App may contain links to other independent third party websites (“Linked Websites”). These Linked Websites are provided solely as a convenience to our visitors. Such Linked Websites are not under the control of Healthy-TXT, and Healthy-TXT is not responsible for and does not endorse the content of such Linked Websites, including any information or materials contained on such Linked Websites. Healthy-TXT does not have any responsibility or liability for any information, data, communications or materials available on such third-party sites. You therefore access these Linked Websites at your own risk.
  1. Collection of Information. You grant Healthy-TXT the perpetual, non-exclusive, worldwide, royalty-free irrevocable license to use, copy, print, display, reproduce, modify, publish, post, transmit, distribute, and preserve any transmittal, communication, or other Content provided by you through the App, or any other service offered on or through the App, and data related to your use of the App, including your name, profile, and biography. Healthy-TXT may disclose any such information and Content to other users of the App, Healthy-TXT licensees, service providers, clients, researchers, and other third parties in accordance with applicable Law, agreements and the Privacy Policy. Further, Healthy-TXT may also disclose such data if required to do so by Law or Healthy-TXT determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce this Agreement, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property, or personal safety of Healthy-TXT, its employees, and users of the App. For further information regarding your privacy, please review our Privacy Policy, which is incorporated into this Agreement by reference. Notwithstanding the foregoing, the Privacy Policy may be changed from time to time without amending this Agreement. To the extent that there is a conflict between the Privacy Policy and this Agreement, this Agreement will control with respect to your use of the App; the Privacy Policy will control with respect to the collection, use, disclosure, and disposal of your information.
  1. Authorized Use. Except as expressly set forth in this Agreement, you will protect the confidentiality of the App, and will not distribute or otherwise make available the App, or any portion of the App, in any form to any third party. Any rights you may possess in the App expire upon expiration or termination of this Agreement. You will employ the security measures necessary to prevent unauthorized users from accessing the App and your user ID(s) and password(s) (“Login Information”). You are solely responsible for the maintenance and protection of your Login Information. You accept responsibility for, and will be liable for all access to the App in connection with your Login Information. Without the prior written consent of Healthy-TXT, you will not utilize the services of any third party to assist you in using the App. Further, you will be responsible for all activities that occur under or in connection with your account and your use of the App and you agree to notify Healthy-TXT in the event your password has been hacked or stolen.
  1. Export Law Assurances. You will not use or otherwise export or re-export this App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App will not be exported or re-exported (1) into (or to a national or resident of) any U.S. embargoed countries, or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons’ List or Entity List. By using the App, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
  1. Territory. Presently, the App is available to residents of the United States only. You understand and acknowledge that you may not sign up for, access or attempt to access or use the App from countries outside of the United States. Healthy-TXT may use technologies to verify your compliance. You agree to abide by United States and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.
  1. Trademarks. Trademarks, service marks, graphics and logos used in connection with the App are the trademarks of their respective owners. Healthy-TXT Voice Memo™ is a trademark of Healthy-TXT. You are not granted any right or license with respect to any of the trademarks mentioned above and any use of such trademarks.
  1. Copyright Infringement. Healthy-TXT respects copyright and other laws. Healthy-TXT requires all App users to comply with copyright and other laws. Healthy-TXT does not, by the supply of the App, authorize you to infringe the copyright or other rights of third parties. As a condition to use the App, you agree that you must not use the App to infringe upon the intellectual property or other rights of others in any way. The unauthorized reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright. You are entirely responsible for your conduct and for ensuring that it complies with all applicable copyright and data-protection laws. In the event you fail to comply with laws regarding copyrights or other intellectual property rights, data protection and privacy, you may be exposed to civil and criminal liability, including possible fines and jail time.
  1. Ownership and Title. All title to and the rights in the App, including ownership rights to patents (registrations, renewals, and pending applications), copyrights, trademarks, service marks, domain names, trade dress, trade secrets, Healthy-TXT’s or third party other technology, any derivatives of and all goodwill associated with the foregoing is the exclusive property of Healthy-TXT and/or third parties.
  1. Representations & Warranties. In addition to the other representations and warranties contained in this Agreement, you further represent, warrant, and covenant to Healthy-TXT the following:
    1. All information you provide to Healthy-TXT as part of the registration process or otherwise will be truthful, accurate and complete, irrespective of any independent verification or other determination made by Healthy-TXT;
    2. You, your practice, and all goods and services provided in connection your use of the App will comply with all applicable national, federal, state, and local laws, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction within the United States (collectively, “Law”);
    3. You are legally authorized in accordance with applicable Law to provide any and all Patient Information that you provide to the App for all uses contemplated under this Agreement;
    4. This Agreement has been duly and validly authorized, accepted, agreed to, and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with this Agreement. You represent that you have full power, capacity and authority to enter into this Agreement. If you are accepting on behalf of your employer or an entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement; and
    5. The performance by you of this Agreement and your use of the App does not and will not conflict with or violate (1) any law, rule, regulation, order, judgment, decree, agreement, instrument, or obligation applicable to you, or (2) if you are an entity, any provision of your organizational or governing documents.
  1. Disclaimer of Warranties. The App, CONTENT, and any THIRD PARTY TECHNOLOGY are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind, either express or implied, including warranties of title, non-infringement, and implied warranties of merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, HEALTHY-TXT, its licensors, and suppliers make no warranty, representation, or guaranty:
    1. as to the content, sequence, accuracy, timeliness, RELEVANCE, or completeness of any content;
    2. AS TO any CONTENT offered or provided within or through the App regarding treatment of medical conditions, actionS, DIAGNOSeS, procedures, application of medication, or other provision of healthcare services;
    3. as to the satisfaction of any government regulations OR LAW requiring disclosure of CONTENT on prescription drug products or the approval or compliance of any software tools with regard to the Content or app; OR
    4. that the APP OR content may be relied upon for any reason, that the APP OR content will be uninterrupted or error free, or that any defects can or will be corrected;further, YOUR USE OF THE APP, CONTENT, AND any THIRD PARTY TECHNOLOGY IS AT YOUR OWN RISK. HEALTHY-TXT DOES NOT WARRANT THAT THE APP, content, OR THIRD PARTY TECHNOLOGY WILL MEET YOUR SPECIFIC REQUIREMENTS. TO THE EXTENT THAT HEALTHY-TXT MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
  1. Limitation of Liability. EXCEPT WHERE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL HEALTHY-TXT BE LIABLE TO YOU OR ANY OTHER PERSON FOR DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, COSTS, EXPENSES OR LOSSES OR LOST PROFITS IN CONNECTION WITH THE APP OR OTHERWISE RELATED TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. HEALTHY-TXT WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF CIRCUMSTANCES BEYOND ITS CONTROL, WHICH CIRCUMSTANCES INCLUDE NATURAL DISASTER, TERRORISM, THIRD PARTY LABOR DISPUTES, WAR, DECLARATIONS OF GOVERNMENTS, TRANSPORTATION DELAYS, FAILURE OF HARDWARE, EQUIPMENT, OR TELECOMMUNICATIONS FAILURE. HEALTHY-TXT WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF MISUSE OF THE APP BY YOU OR BY ANY OTHER PERSON. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT ANY EXCLUSIVE REMEDY PROVIDED HAS FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, IN NO EVENT WILL HEALTHY-TXT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF ANY USE OR MISUSE OF ANY THIRD PARTY TECHNOLOGY. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. IN NO EVENT SHALL THE LIABILITY OF HEALTHY-TXT FOR ANY LOSS RELATED TO USE OR INABILITY TO USE THE APP EXCEED $5.00 U.S.
  1. Indemnification. You will indemnify, defend, and hold Indemnitee (as defined below) harmless from and against any and all Claims and Losses ARISING from or attributable to (1) YOUR PROVISION OF MEDICAL SERVICES and treatment of patients in CONNECTION WITH YOUR USE OF THE APP, any content, or otherwise; (2) your breach of any of your representations, warranties, covenants, or other agreements made under this Agreement; (3) any Claims by or disputes related to your use of the App; (4) ANY CONTENT YOU PROVIDE TO the app OR OTHERWISE TRANSMIT USING THE APP; and (5) any breach of confidentiality related to your use of the app.
    1. Procedures. The Indemnitee will give you written notice of any Claim for which indemnification is sought. However, failure to provide such notice will not relieve you from your liability or obligations under this Agreement, except to the extent you are materially prejudiced as a direct result of such failure. The Indemnitee will cooperate with you at your expense in connection with the defense and settlement of the Claim. You may not settle any indemnified Claim in a manner that adversely affects the Indemnitee without its prior written consent. Further, the Indemnitee may participate in the defense of the Claim through counsel of its own choosing at its own cost and expense. If you fail to promptly assume the defense and employ counsel reasonably satisfactory to Indemnitee, or the Indemnitee has been advised by counsel that there exist actual or potential conflicting interests between you or your counsel and such Indemnitee, the Indemnitee may employ separate counsel, in addition to local counsel, to represent or defend such Indemnitee in such action or proceeding, and you agree to pay the fees and disbursements of such separate counsel as incurred. To the extent indemnification requires the payment of monies owed, such indemnification will occur as soon as reasonably possible after the determination of monies owed, and payment to the Indemnitee will be made within 30 days of a final determination of monies owed. Your obligations under this Section are in addition to any rights that any Indemnitee may have at common law or otherwise.
    2. Defined Terms. “Claim” means each and every claim, request, accusation, allegation, assertion, complaint, petition, demand, suit, action, proceeding, and cause of action of every kind and description. “Indemnitee” means Healthy-TXT, its affiliates, and its and their respective officers, directors, shareholders, managers, members, agents, employees, representatives, successors, and assigns. “Loss” means each and every liability, loss, damage, and injury (including injury or damage to any property right, and injury, damage, or death to any Person), wound, wrong, hurt, harm, expense, deficiency, diminution in value, obligation, expenditure and disbursement of any kind or nature (including all fees, costs, and expenses of investigation, travel expenses, and value of time expended by personnel), settlement, fine, fee, cost, cost of court, and all expenses of litigation (including reasonable attorneys’ fees) incident to any of the foregoing.
  1. Release. IN the event that you have a dispute with one or more users of the App for any reason, you release HEALTHY-TXT (and its officers, directors, managers, members, agents, subsidiaries, REPRESENTATIVES, and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
  1. Term. Unless otherwise terminated by Healthy-TXT as provided for in this Agreement, this Agreement will remain in effect for so long as Healthy-TXT licenses the use of the App to you.
  1. Termination. Healthy-TXT may, in its sole discretion and without prior notice, terminate your access to the App for violations of this Agreement or other agreements or guidelines, which may be associated with your use of the App, or if Healthy-TXT deems it necessary in its sole discretion. Further, Your Organization may terminate, or request that Healthy-TXT terminate your access to the App. In any such event, you must destroy all copies of the App and all of its component parts. Failure to abide by this Agreement is a material breach of this Agreement for which Healthy-TXT may pursue all rights and remedies it has pursuant to this Agreement, and any other rights and remedies it may have at law or in equity. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice and will cause irreparable harm to Healthy-TXT, for which monetary damages would be inadequate, and you consent to Healthy-TXT obtaining any injunctive or equitable relief that Healthy-TXT deems necessary or appropriate in such circumstances without the need to post a bond or satisfy any similar requirements. These remedies are in addition to any other remedies Healthy-TXT may have at law or in equity.
  1. U. S. Government End Users. The App is a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government End Users acquire the App with only those rights expressly set forth in this Agreement.
  1. General Provisions.
    1. Entire Agreement. This Agreement, the Privacy Policy, the attached Business Associate Agreement, and any other terms of use, or other guidelines (collectively, “Other Terms”) provided by Healthy-TXT through or in connection with the App contain the entire understanding of the parties with respect to the subject matter of this Agreement and supersede all previous verbal and written agreements between the parties concerning the subject matter of this Agreement. To the extent that any Other Terms conflict with any provision of this Agreement, this Agreement will control. The App is the property of Healthy-TXT. Healthy-TXT reserves the right to change, add or remove portions of this Agreement or the App at any time and at its sole discretion. Your continued use of the App following the posting or delivery to you of any changes means that you accept and agree to such changes.
    2. Assignment. This Agreement, and any rights or obligations in this Agreement will not be assigned by you without the prior written consent of Healthy-TXT. Any attempt to assign or transfer this Agreement other than in accordance with this provision will be null and void. Subject to the forgoing, this Agreement and its terms and provisions inure to the benefit of and are binding upon the parties and their respective successors, heirs, personal representatives, and assigns.
    3. Governing Law/Waiver of Trial by Jury.<
      1. You agree that all matters relating to your access to or use of the App, including all disputes, will be governed by the laws of the United States and by the laws of the State of Illinois without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Illinois, and waive any objection to such jurisdiction or venue. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion of any provision, to be unenforceable, the remainder of this Agreement will continue in full force and effect.
      2. EXCEPT WHERE PROHIBITED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
    4. Notices. All notices, requests, or consents sent to Healthy-TXT that are required or permitted under this Agreement must be in writing (including electronic form) and must be delivered to the address designated below in a notice served in the manner provided for below. Each notice, request, consent, or other communication will be given and will be effective: (1) if delivered by hand, when so delivered; (2) if delivered by nationally recognized overnight courier service or sent by United States Express Mail, upon confirmation of delivery; (3) if delivered by certified or registered mail, on the third following day after deposit with the United States Postal Service; or (4) if delivered by facsimile, upon confirmation of successful transmission, and if delivered by email, upon confirmation of receipt by the other party in writing by return email.
      Healthy-TXT
      210 South Fifth St. Suite 101 St. Charles, IL 60607
      Phone: 630-945-1787
      Fax: 877-646-9248
      Email: info@healthy-txt.com
    5. Severability. The provisions of this Agreement are severable. The invalidity, in whole or in part, of any provision of this Agreement will not affect the validity or enforceability of any other of its provisions. If one or more provisions of this Agreement are declared invalid or unenforceable, the remaining provisions will remain in full force and effect and will be construed in the broadest possible manner to effectuate the purposes of this Agreement. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions that will achieve, to the extent possible, the economic, business, and other purposes of the void or unenforceable provisions.
    6. Captions. The headings and captions of this Agreement are inserted for reference convenience and do not define, limit, or describe the scope or intent of this Agreement or any particular section, paragraph, or provision of this Agreement. Unless otherwise expressly provided, the words “include(s),” “included,” or “including” do not limit the preceding words or terms. Pronouns will refer to the masculine, feminine, neuter, singular, or plural as the context will require.
    7. Waiver. The failure or delay of Healthy-TXT to exercise or enforce any rights or provision of this Agreement does not constitute a waiver of such right or provision.
    8. Survival. All provisions which must survive in order to give effect to their meaning will survive any expiration or termination of this Agreement, including without limitation Sections 2(c), 16, 17, 18, and 19 and all of your representations, warranties and indemnification obligations, which will survive any expiration or termination of this Agreement indefinitely.

Last Updated October 14, 2013.

EXHIBIT A

HIPAA BUSINESS ASSOCIATE AGREEMENT

This HIPAA Business Associate Agreement (“Agreement”) is entered into by and between Healthy-TXT, LLC (hereinafter “Business Associate”) and you (hereinafter “Covered Entity”) effective as of the date of your registration to use the Healthy-TXT Voice Memo™ software application, related services, and all updates, enhancements, and upgrades provided to you (collectively, “App”) by Healthy-TXT, LLC (“Healthy-TXT”) and/or its authorized distributors..
Covered Entity and Business Associate mutually agree to the terms of this Agreement to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), HIPAA’s implementing regulations, the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Security Standards for the Protection of Electronic Protected Health Information (the “Security Rule“) found at Title 45, Parts 160 and 164 of the Code of Federal Regulations, dealing with the security, confidentiality, integrity and availability of protected health or health-related information, including the Business Associate Agreement requirements at 45 §§ 164.314(a) and 164.504(e), as amended by the Health Information Technology for Economic and Clinical Health Act contained in Public Law 111-005, as it may be codified in the U.S. Code (“HITECH Act“). .

  1. Definitions.
    1. Protected Health Information (PHI) means any information, whether oral or recorded in any form or medium, that: (i) relates to the past, present or future physical or mental condition of any Individual; the provision of health care to an Individual; or the past, present or future payment of the provision of health care to an Individual; and (ii) identifies the Individual, or with respect to which there is a reasonable basis to believe the information can be used to identify the Individual. PHI includes demographic information unless such information is de-identified according to the Privacy Rule. “Protected Health Information” includes without limitation “Electronic Protected Health Information” as defined below.
    2. Electronic Protected Health Information (ePHI) means Protected Health Information, which is transmitted by Electronic Media (as defined in the HIPAA Privacy and Security   Rule) or maintained in Electronic Media.
    3. Individual means the person who is the subject of PHI, and shall include a person who qualifies under the Privacy Rule as a personal representative of the Individual.
    4. Capitalized terms used in this Agreement, but not otherwise defined, shall have the same meaning as those terms in the Privacy Rule, Security Rule or HITECH Act.
    1. Prohibition on Unauthorized Use or Disclosure of PHI. Business Associate shall not use or disclose any PHI received from or on behalf of Covered Entity except as permitted under the Privacy Rule, as permitted or required by this Agreement, as required by law, or as otherwise authorized in writing by Covered Entity.
    1. Business Associate agrees to comply with the minimum necessary requirements of the Privacy Rule.
    1. Use and Disclosure of Protected Health Information. Except as described in Section 4, Business Associate may use or disclose PHI only for the following purpose(s):
      1. Business Associate may make any and all uses of PHI necessary to perform its obligations to Covered Entity, including any obligations required pursuant to this Agreement. All other uses not authorized by this Agreement are prohibited unless specifically authorized by Covered Entity to Business Associate.
    1. Use of PHI for Certain of Business Associate’s Operations. Business Associate may use and/or disclose PHI it creates for, or receives from, Covered Entity to the extent necessary for Business Associate’s proper management and administration, or to carry out Business Associate’s legal responsibilities, only if:
      1. The disclosure is required by law; or
      2. Business Associate obtains reasonable assurances, evidenced by written contract, from any person or organization to which Business Associate shall disclose such PHI that such person or organization shall:
        1. hold such PHI in confidence and use or further disclose it only for the purpose for which Business Associate disclosed it to the person or organization, or as required by law; and
        2. notify Business Associate, who shall in turn promptly notify Covered Entity, of any instance which the person or organization becomes aware of in which the confidentiality of such PHI was breached.
    2. Business associate agrees not to directly or indirectly receive remuneration in exchange for any PHI, except as permitted under the Privacy Rule.
    1. The HITECH Act and Additional Use and Disclosure Obligations.
      1. Sections 164.308, 164.310, 164.312 and 164.316 of Title 45, Code of Federal Regulations, shall apply to Business Associate in the same manner that such sections apply to Covered Entity. The additional requirements of the HITECH Act that relate to security and that are made applicable with respect to Covered Entity shall also be applicable to Business Associate and are, by this reference, incorporated into this Agreement.
      2. Business Associate may use and disclose PHI that Business Associate obtains or creates only if such use or disclosure, respectively, is in addition to the other requirements of this Agreement, in compliance with each applicable requirement of Section 164.504(e) of Title 45, Code of Federal Regulations. The additional requirements of Subtitle D of the HITECH Act that relate to privacy and that are made applicable to Covered Entity shall also be applicable to Business Associate and, by this reference, are hereby incorporated into this Agreement.
      3. Section 16.504(e)(1)(ii) of Title 45, Code of Federal Regulations shall apply to Business Associate with respect to compliance with such subsection, in the same manner that such section applies to Covered Entity, with respect to compliance with the standards of Sections 164.502(e) and 164.504(e) of Title 45, Code of Federal Regulations, except that in applying such Section 164.504(e)(1)(ii), each reference to the Business Associate, with respect to a contract, shall be treated as a reference to the Covered Entity involved in such contract.
    1. Safeguarding of PHI. Business Associate shall develop, implement, maintain, and use reasonable and appropriate administrative, technical, and physical safeguards to protect the security, confidentiality, integrity and availability of all PHI, in any form or media, created, received, maintained or transmitted on behalf of the Covered Entity. Business Associate shall document and keep these security measures current. Business Associate shall cooperate in good faith in response to any reasonable requests from Covered Entity to discuss, review, inspect, and/or audit Business Associate’s safeguards.
    1. Subcontractors and Agents. If Business Associate provides any PHI which was received from, or created for, Covered Entity to a subcontractor or agent, then Business Associate shall enter into an agreement with such subcontractor. Business Associate shall require such subcontractor or agent to agree to the same restrictions and conditions as are imposed on Business Associate by this Agreement.
    1. Security of e-PHI. Business Associate shall secure all e-PHI by a technology standard that renders PHI unusable, unreadable or indecipherable to unauthorized individuals and is consistent with guidance issued by the Secretary specifying the technologies and methodologies that render e-PHI unusable, unreadable or indecipherable to unauthorized individuals, including the use of standards developed under Section 2002(b)(2)(B)(vi) of the Public Health Service Act, as added by Section 13101 of the HITECH Act.
    1. Access to PHI. At the direction of Covered Entity, Business Associate agrees to provide access to any PHI held by Business Associate, which Covered Entity has determined to be part of Covered Entity’s Designated Record Set, within ten (10) calendar days of a request. This access will be provided to Covered Entity or, as directed by Covered Entity, to an Individual, in order to meet the requirements under the Privacy Rule.
    1. Amendment or Correction to PHI. At the direction of Covered Entity, Business Associate agrees to amend or correct PHI held by Business Associate and which Covered Entity has determined to be part of Covered Entity’s Designated Record Set, within ten (10) calendar days of such a request by Covered Entity.
    1. Reporting of Misuse or Unauthorized Disclosures of PHI. Business Associate shall report to Covered Entity any privacy incident, such as misuse or inappropriate use or disclosure of PHI, which is not in compliance with the terms of this Agreement, immediately upon becoming its awareness of the incident. Business Associate also shall report to Covered Entity any Security Incidents of which it becomes aware, including those incidents reported to Business Associate by its subcontractors or agents. Business Associate shall make the incident reports to Covered Entity not less than ten (10) calendar days after Business Associate learns of such use or disclosure. For either Privacy or Security Incidents, Business Associate’s report to Covered Entity shall identify: (i) the nature of the unauthorized use or disclosure, (ii) the PHI used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what Business Associate has done or shall do to mitigate any deleterious effect of the unauthorized use or disclosure, and (v) what corrective action Business Associate has taken or shall take to prevent future similar unauthorized use or disclosure. Business Associate shall provide such other information, including a written report, as reasonably requested by Covered Entity’s Privacy or Security Official.
    1. Mitigating Effect of Misuse or Unauthorized Disclosures of PHI. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a misuse or unauthorized disclosure of PHI by Business Associate in violation of the requirements of this Agreement. In addition, as further provided in sections 16.b and 16.c of this Agreement, Business Associate will cooperate with any internal investigation of Covered Entity and, as appropriate, indemnify Covered Entity for costs associated with the misuse or unauthorized disclosure by Business Associate.
    1. Tracking and Accounting of Disclosures. So that Covered Entity may meet its accounting obligations under the Privacy Rule Business Associate agrees as follows:
      1. Disclosure Tracking. Starting April 14, 2003, for each disclosure not excepted under subsection (b) below, Business Associate will record for each disclosure of PHI it makes to Covered Entity or a third party of PHI that Business Associate creates or receives for or from Covered Entity (i) the disclosure date, (ii) the name and (if known) address of the person or entity to whom Business Associate made the disclosure, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the purpose of the disclosure. For repetitive disclosures which Business Associate makes to the same person or entity, including the Covered Entity, for a single purpose, Business Associate may provide (i) the disclosure information for the first of these repetitive disclosures, (ii) the frequency, periodicity or number of these repetitive disclosures, and (iii) the date of the last of these repetitive disclosures. Business Associate will make this log of disclosure information available to the Covered Entity within five (5) business days of the Covered Entity’s request.
      2. Exceptions from Disclosure Tracking. Business Associate need not record disclosure information or otherwise account for disclosures of PHI that meet each of the following conditions:
        1. the disclosures are permitted under this Agreement, or are expressly authorized by Covered Entity in another writing; and,
        2. the disclosure is for one of the following purposes:
          1. Covered Entity’s Treatment, Payment, or Health Care Operations;
          2. in response to a request from the Individual who is the subject of the disclosed PHI, or to that Individual’s Personal Representative;
          3. made to persons involved in that individual’s health care or payment for health care;
          4. for notification for disaster relief purposes;
          5. for national security or intelligence purposes; or,
          6. to law enforcement officials or correctional institutions regarding inmates.
        3. Disclosure Tracking Time Periods. Business Associate must have available for Covered Entity the disclosure information required by this section for the six-year period preceding Covered Entity’s request for the disclosure information (except Business Associate need have no disclosure information for disclosures occurring before April 14, 2003).
    1. Accounting to Covered Entity and to Government Agencies. Business Associate shall make its internal practices, books, and records relating to the use and disclosure of PHI received from or on behalf of, or created for, Covered Entity available to Covered Entity, or at the request of Covered Entity, to the Secretary of the Department of Health and Human Services (HHS) or his/her designee, in a time and manner designated by Covered Entity or the Secretary or his/her designee, for the purpose of determining Covered Entity’s compliance with the Privacy Rule. Business Associate shall promptly notify Covered Entity of communications with HHS regarding PHI provided by or created by Covered Entity and shall provide Covered Entity with copies of any information Business Associate has made available to HHS under this provision.
    1. Responsibilities of Covered Entity. With regard to the use and/or disclosure of PHI by the Business Associate, Covered Entity hereby agrees to do the following:
      1. Inform the Business Associate of any limitations in the form of Notice of Privacy Practices that Covered Entity provides to individuals pursuant to 45 C.F.R. §164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
      2. Inform the Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose PHI, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
      3. Notify the Business Associate, in writing and in a timely manner, of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may impact in any manner the use and/or disclosure of PHI by the Business Associate under this Agreement or the Services Agreement, except if the Business Associate will use or disclose PHI for data aggregation or management if provided for by the Services Agreement; administration and/or legal responsibilities of the Business Associate.
      4. Not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy and Security Rule if done by the Covered Entity.
    1. Term and Termination.
      1. This Agreement shall take effect upon execution.
      2. In addition to the rights of the parties established by the underlying Agreement, if Covered Entity reasonably determines in good faith that Business Associate has materially breached any of its obligations under this Agreement, Covered Entity, in its sole discretion, shall have the right to:
        1. exercise any of its rights to reports, access and inspection under this Agreement; and/or
        2. require Business Associate to submit to a plan of monitoring and reporting, as Covered Entity may determine necessary to maintain compliance with this Agreement; and/or
        3. provide Business Associate with a thirty (30) day period to cure the breach; or
        4. terminate the Agreement immediately.
      3. Before exercising any of these options, Covered Entity shall provide written notice to Business Associate describing the violation and the action it intends to take.
      4. If Business Associate makes the determination that a material condition of performance has changed under this Agreement or that Covered Entity has breached a material term of this Agreement, Business Associate may provide thirty (30) days advance notice of its intention to terminate this Agreement. Business Associate agrees, however, to cooperate with Covered Entity to find a mutually satisfactory resolution to the matter prior to terminating this Agreement.
    1. Return or Destruction of PHI. Upon termination, cancellation, expiration or other conclusion of the Agreement, Business Associate shall:
      1. Return to Covered Entity or, if return is not feasible, destroy all PHI and all Health Information in whatever form or medium that Business Associate received from or created on behalf of Covered Entity. This provision shall also apply to all PHI that is in the possession of subcontractors or agents of Business Associate. In such case, Business Associate shall retain no copies of such information, including any compilations derived from and allowing identification of PHI. Business Associate shall complete such return or destruction as promptly as possible, but not more than thirty (30) days after the effective date of the conclusion of this Agreement. Within such thirty (30) day period, Business Associate shall certify on oath in writing to Covered Entity that such return or destruction has been completed.
      2. If Business Associate believes that the return or destruction of PHI or Health Information is not feasible, Business Associate shall provide written notification of the conditions that make return or destruction infeasible. Upon mutual agreement of the Parties that return or destruction is not feasible, Business Associate shall extend the protections of this Agreement to PHI and Health Information received from or created on behalf of Covered Entity, and limit further uses and disclosures of such PHI, for so long as Business Associate maintains the PHI.
    1. Miscellaneous.
      1. Automatic Amendment. Upon the effective date of any amendment to HIPAA, the Privacy Rule or the Security Rule promulgated by HHS with regard to PHI, this Agreement shall automatically amend so that the obligations imposed on Business Associate remain in compliance with such regulations.
      2. Cooperation. Business Associate shall provide prompt and reasonable cooperation to Covered Entity as appropriate and necessary for Covered Entity to fully investigate actual or probable Privacy or Security Incidents.
      3. Indemnification. Business Associate shall defend and hold Covered Entity harmless from all claims, liabilities, damages, or judgments involving a third party, including Covered Entity’s costs and attorney fees, including but not limited to costs of patient notification, which arise as a result of Business Associate’s failure to meet any of its obligations under this Agreement.
      4. Response to Subpoenas. In the event Business Associate receives a subpoena or similar notice or request from any judicial, administrative or other party which would require the production of PHI received from, or created for, Covered Entity, Business Associate shall promptly forward a copy of such subpoena, notice or request to Covered Entity to afford Covered Entity the opportunity to timely respond to the demand for its PHI as Covered Entity determines appropriate according to its state and federal obligations.
      5. Amendments. This Agreement may be amended or altered only upon mutual written agreement of the parties hereto.
      6. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with HIPAA.

 

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