Kaly Healthcare Provider Agreement

V.01.1220

This Healthcare Provider Agreement (“Agreement”) between Kalypsys Inc. (dba Kaly, Inc.) and Healthcare Provider, as that term is defined below, is effective as of the date that Healthcare Provider submits this Agreement to Kaly. Kaly and Healthcare Provider are referred to collectively as “Parties,” and each individually as a “Party.”

Whereas, Kaly provides the website www.kaly.com (“the Website”) to the public and for registered Users to facilitate a connection of patients to Healthcare Providers;

Whereas, patients may schedule appointments with a Healthcare Provider on the Website;

Whereas, the Website displays information about Healthcare Providers to the public, including information regarding specialty and user ratings that are aggregated from the internet;

Whereas, Healthcare Provider desires that its information be available and displayed on the Website and desires that Kaly facilitate the connection of patients to Healthcare Provider and for patients to be able to schedule appointments with Healthcare Provider via the Website;

Therefore, the Parties agree as follows:

Definitions:
1. “Healthcare Provider” means the entity on behalf of which this Agreement is completed and submitted, and includes all Members and Employees of the entity. It may also mean an individual healthcare practitioner.
2. “Members and Employees” means all doctors, dentists, nurses, physicians assistants, therapists and other specialists that are affiliated with the entity and who see patients by appointment, and who are part of a single covered entity (as that term is defined under HIPAA) or a single organized health care arrangement (as that term is defined under HIPAA). A list of Members and Employees of Healthcare Provider is included herein as Schedule A.
Representations and Warranties of Kaly:
1. Kaly will use Healthcare Provider’s information only as permitted by this Agreement and for no other purpose.
2. Kaly expressly disclaims any representation and warranty regarding the accuracy of information provided to Kaly by patients, including patients who make appointments with Healthcare Provider via the Website.
Representations and Warranties of Healthcare Provider:
1. Healthcare Provider represents and warrants that all Members and Employees of Healthcare Provider have the necessary valid, unexpired, unrevoked and unrestricted credentials, certifications and licenses required to practice the Member’s and Employee’s healthcare specialty in all jurisdictions in which the member or employee practices.
2. Healthcare Provider represents and warrants that all Members and Employees of Healthcare Provider are not excluded from Medicare and Medicaid programs.
3. Healthcare Provider represents and warrants that it has the right to enter into this Agreement for each of its Members and Employees.
4. Healthcare Provider represents and warrants that it has all necessary right, title, and interest in and to the information provided by Healthcare Provider to Kaly, including any and all rights and interests to any copyright, trademark, other intellectual property, rights of publicity, and rights of privacy.
5. Healthcare Provider represents and warrants that all information provided to Kaly, regardless of whether that information is displayed on the Website, is true and accurate of the date of provision of such information.
6. Healthcare Provider represents and warrants that it will keep its information displayed on the Website up to date and will certify the accuracy of the information no less than once per year, and upon the renewal of the Healthcare Provider’s contract.
7. Healthcare Provider will truthfully advertise its services and refrain from making any promises it cannot keep.
8. Healthcare Provider will abide by all of its/their ethical and legal obligations in connection with the Kaly service and the provision of Healthcare Provider’s services.
Responsibilities of Kaly
1. Kaly will connect patients to Healthcare Provider as determined by Kaly’ proprietary computer algorithm. The connection will account for specialty, geography, insurance, and other factors, including a patient score that is determined by aggregating information provided by various Healthcare Providers about individual patients. Healthcare Provider may specify, based on patient score, whether it will be connected to a particular patient. See Schedule B.
2. Kaly will maintain and host a location on the Website dedicated to Healthcare Provider (the “Page”). The Page will include a Healthcare Provider description, including a description of the healthcare services provided by Healthcare Provider, insurance accepted by Healthcare Provider, full name, address, phone number, and fax number of Healthcare Provider. Healthcare Provider will provide the information to be included on the Page.
3. Kaly will allow patients who are selected for connection to Healthcare Provider to view Healthcare Provider’s available appointments and book an appointment directly from the Page.
4. Kaly will send reminders to patients of upcoming appointments with Healthcare Provider.
5. Kaly will aggregate information from various websites that will be used to provide a rating for Healthcare Provider and display that information on the Page. Healthcare Provider will be able to access that rating and provide comments that will be displayed on the Page. Kaly reserves the right to review Healthcare Provider comments before displaying such comments on the Page and to refuse to display comments that it, in its sole discretion, believes are inappropriate content for the Website. Kaly will not withhold display of the comments on the Page unreasonably. Healthcare Provider may challenge a determination by Kaly not to display comments on the Page, however, the final decision regarding whether to post a Healthcare Provider comment to the Page resides with Kaly.
6. Kaly hereby grants to Healthcare Provider a renewable, non-exclusive, revocable license to use the Kaly logo in Healthcare Provider’s advertising, for the sole purpose of advertising that Healthcare Provider is affiliated with Kaly.
Responsibilities of Healthcare Provider
1. Healthcare Provider will grant Kaly access to Healthcare Provider’s calendar system such that Kaly may be able to inform patients of available appointments and may be able to schedule appointments between patients and Healthcare Provider. Healthcare Provider will provide cooperation and technical assistance to Kaly to facilitate the access to Healthcare Provider’s calendar system.
2. Healthcare Provider will provide information, including a description of services, relevant certifications and licenses, general Healthcare Provider information, trademarks, logos, address, phone number, fax number, and insurance accepted, to Kaly, and agrees that Kaly may display that information on the Page. Healthcare Provider allows Kaly to display calendar and appointment information on the Page. Healthcare Provider will cooperate with any and all of Kaly’ efforts to verify any information provided by Healthcare Provider. See Schedule C.
3. Healthcare Provider will maintain an account with Kaly through which Healthcare Provider provides Kaly with its information as described in part b of this section. Healthcare Provider will review the information not less often than once per calendar year, and certify that the information is accurate not less often than once per calendar year. Healthcare Provider will update the information within fifteen calendar days of any change of information, including certification and licensing information, and certify that the information is accurate.
4. Healthcare Provider will have access to patient information after a patient schedules an appointment with Healthcare Provider. Healthcare Provider will use this information solely as needed to facilitate the appointment with the patient. Healthcare Provider will use this information only in accordance with all applicable rules, laws, and regulations, including HIPAA. With respect to the patients that are California Residents, Healthcare Provider will comply with the additional privacy requirements under the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199) and as set forth in the CCPA Addendum hereto, which Addendum is expressly made part of and incorporated by reference into this Agreement.
5. Healthcare Provider will be responsible for the healthcare provider/patient relationship between Healthcare Provider and the patient. Healthcare Provider agrees that no patient relationship arises between any patient and Kaly and that no action of Kaly under this Agreement constitutes the practice of medicine. Healthcare Provider is responsible for collecting all fees and payments from the patients and agrees that Kaly has no obligation to reimburse Healthcare Provider for any services rendered by Healthcare Provider and has no obligation to assist Healthcare Provider in the collection of any fees from patients.
6. Healthcare Provider expressly opts in to receiving email, facsimile or other forms of communication from Kaly. This opt-in supersedes any opt out that Healthcare Provider may have previously submitted.
7. Healthcare Provider will promptly pay any charges for the service, and any other charges it incurs in business dealings with Kaly. Failure to timely pay its charges will subject Healthcare Provider to suspension or termination of the Kaly service with no right to refund or other liability owed by Kaly.
Healthcare Provider Restrictions
1. The information provided by Kaly will continue to be the exclusive property of Kaly. This Agreement shall not be deemed to convey any right, title or interest, including patent, copyright or other proprietary right, in or to any portion or part of the Website. The programs and software which operate the Website are confidential trade secrets of Kaly and, therefore, Healthcare Provider and its members and employees agree not to modify the programs or any embodiment thereof or attempt to decipher, decompile, disassemble or reverse engineer the programs or software that constitute the Website or any embodiment thereof.
2. Non-Compete. During the term of this Agreement and for two years thereafter, Healthcare Provider and its Members and Employees will not, directly or indirectly, on Healthcare Provider’s own behalf or on behalf of or in conjunction with any person, business, firm, company, or other entity, set up, join, become employed by, be engaged in, or provide any advice or services to, any enterprise (including, without limitation, any corporation, partnership, proprietorship, or other venture) which competes with Kaly.
3. Non-Solicitation. During the term of this Agreement and for two years thereafter, Healthcare Provider and its Members and Employees will not, directly or indirectly, on Healthcare Provider’s own behalf or on behalf of or in conjunction with any person, business, firm, company, or other entity, solicit any employee or contractor of Kaly for employment, retention, or other job or work without the express written approval of Kaly. Moreover, during the term of this Agreement and for two years thereafter, Healthcare Provider and its Members and Employees will not, directly or indirectly, on Healthcare Provider’s own behalf or on behalf of or in conjunction with any person, business, firm, company, or other entity, solicit, encourage, or recommend that any Healthcare Provider, Medical Consultant, or User leave, discontinue, or cease its relationship with Kaly or otherwise conduct business with a competitor of Kaly.
Fees and Payments
1. $299 per month, billed on the first of the month.
2. Late fee: 3% interest per month on late invoices.
3. Termination. Upon termination of this Agreement for any reason, Healthcare Provider shall pay to Kaly all fees due or accrued under this Agreement as of the date of the termination. Kaly shall not be responsible to repay any portion of any fee (used or unused) paid to Kaly upon termination of this Agreement.
4. Same Fee. Healthcare Provider agrees not to charge any patients different amounts based on the patient’s connection to Healthcare Provider being made by Kaly.
5. Regulatory Notice. The Parties agree that any and all Healthcare Provider payments for Kaly’ services are:
  1. consistent with fair market value in an arm’s length transaction;
  2. not based on the value or volume of any items or services provided by Healthcare Provider to patients; and
  3. do not constitute splitting of any professional fees paid to Healthcare Provider by patients.
Limitation of Liability
1. The Parties agree that Kaly and its parents, subsidiaries, affiliates, partners, directors, officers, employees, suppliers, vendors or licensors shall not be liable or in any way responsible for the cancellation or rescheduling of any appointment that was made via the Website, mistakes or errors appearing in the content of Healthcare Provider’s Page, or for any other reason unless Kaly actions is wilfull or intentional. To the extent such limitation of liability is unavailable under the applicable law, the Parties agree that this provision should be interpreted to apply to the Parties in the most favorable manner to fulfill the intention of this clause, which is to limit Kaly’ liability.
2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL KALY OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO HEALTHCARE PROVIDER, ITS MEMBERS AND EMPLOYEES FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF THE WEBSITE, (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO PATIENTS, OR (v) PATIENT REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF KALY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF KALY OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, VENDORS OR LICENSORS FOR ANY LOSS OR DAMAGES (WHETHER BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION) (A) RELATING TO OR ARISING OUT OF THIS AGREEMENT, OR (B) RELATING TO OR ARISING OUT OF ANY OTHER AGREEMENT BETWEEN, ON THE ONE HAND, HEALTHCARE PROVIDER AND ITS MEMBERS AND EMPLOYEES, AND, ON THE OTHER HAND, KALY OR ANY THIRD-PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR OR LICENSEE OF KALY, EXCEED THE GREATER OF: (Y) THE AGGREGATE OF THE AMOUNT OF FEES ACTUALLY PAID BY HEALTHCARE PROVIDER TO KALY HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (Z) ONE HUNDRED DOLLARS ($100).
4. ANY CLAIM THAT IS MADE BY HEALTHCARE PROVIDER ARISING UNDER THIS AGREEMENT OR OTHERWISE, MUST BE MADE AND FILED IN A FORUM OF COMPETENT JURISDICTION BEFORE THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS OR WITHIN ONE (1) YEAR OF ACCRUAL OF THE CAUSE OF ACTION, WHICHEVER IS EARLIER . IT IS ACKNOWLEDGED THAT THIS MAY BE A SHORTENING OF THE STATUTE OF LIMITATIONS APPLICABLE TO CERTAIN CLAIMS.
Indemnification
1. Healthcare Provider shall defend, indemnify and hold Kaly, its parents, subsidiaries, predecessors, successors and affiliates, and their respective officers, directors, shareholders, members, employees and agents harmless from and against any claims, actions, demands, lawsuits, losses, damages, costs, expenses, judgments, fines, penalties, and liabilities (including reasonable attorney’s fees and courts costs) incurred in connection with any third-party demands, assertions, claims, suits, actions or other proceedings: (a) alleging the services provided by Kaly violate any applicable law, rule, regulation or judicial order; (b) arising from the acts or omissions of Healthcare Provider, including its Members and Employees, agents or permitted contractors in connection with the performance of any services provided.
Other Representations and Warranties; Disclaimer of Warranties.
1. Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has the full power to enter into this Agreement and to perform its obligations hereunder; (iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such Party is bound; and (iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
2. No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KALY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE OR THE WEBSITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.
Intellectual Property.
1. All right, title and interest, including without limitation all intellectual property rights, in and to the Website, as well as all URLs and domains registered by Kaly (even if such URLs and domains incorporate Healthcare Provider trademarks), shall remain the valuable and exclusive property of Kaly. Kaly retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks, trade dress, rights to the look and feel of the Website, and trade secrets in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Website.
Confidentiality/HIPAA Compliance.
1. Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that: (i) if disclosed orally is designated as confidential at the time of disclosure; (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”; or (iii) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the terms and conditions of this Agreement. Confidential Information shall not include Protected Healthcare Information (PHI) or any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.
2. Moreover, any information encountered by Healthcare Provider referring to Kaly’ proprietary business information should be deemed and Healthcare Provider agrees to the designation of such information as a trade secret of Kaly. Healthcare Provider agrees that such information shall be protected as a trade secret as required under the Defend Trade Secrets Act of 2016 (“DTSA”), as amended. Such information may include, but not be limited to: information concerning processes; methods; research; secret data; costs; names and contact information of users, purchasers of its products or services, vendors, healthcare providers, prospective Medical Consultants, developers, or other service providers; business methods; operating procedures or programs; methods of promotion and sale; domain names; programs, software and code, business plans; financials; projections; plans; prospective customers; training manuals; product development plans; bidding and pricing procedures; market plans and strategies; internal performance statistics; confidential personnel information concerning employees of Kaly; operational or administrative plans; policy manuals; terms and conditions of contracts and agreements; business analytics; patents; systems; equipment; creations; designs; formats; programming; discoveries; inventions; improvements; data kept on computers; engineering, research, and development applications; financial information; information regarding services and products in development; market information, including test marketing or localized marketing; and other information regarding know-how of the Kaly. The foregoing is not intended to be all inclusive and proprietary information should be construed in the broadest manner to encompass business information that is typically considered proprietary or has value to Kaly if kept secret or proprietary to Kaly.
  1. Notwithstanding any provisions in this Agreement or Kaly policy applicable to the unauthorized use or disclosure of trade secrets, you are hereby notified that you cannot be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (A) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law. You also may not be held liable for such disclosures made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal and (B) does not disclose the trade secret, except pursuant to court order.
3. Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Receiving Party’s obligations under this Agreement, provided that the Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain such Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own information of a confidential and proprietary nature, but in no event less than a reasonable degree of care.
4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
5. HIPAA. In the event that Kaly creates, receives, maintains, or transmits Protected Health Information (or “PHI”, as such term is defined by HIPAA) from or on behalf of Healthcare Provider, the parties agree and acknowledge that Kaly is serving as a “Business Associate” (as such term is defined by HIPAA of Healthcare Provider. Healthcare Provider and Kaly agree to discharge their respective duties hereunder in accordance with the applicable provisions of HIPAA. In furtherance of the foregoing, the terms of the Business Associate Agreement set forth in Exhibit A of this Agreement are incorporated herein by reference.
Term; Termination.
1. Term. This Agreement will commence as of the date of Healthcare Provider’s submission of this Agreement to the Website and shall continue in effect for a period of one year (the “initial term”). This Agreement shall automatically renew for successive periods of one year unless either Party terminates the Agreement in accordance with this section. The Initial Term and all renewal periods are collectively referred to herein as the “Term.”
2. Termination.
  1. Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured for 30 days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
  2. Termination for Convenience. Either Party may terminate this Agreement, at any time with or without cause by giving 30 days prior written notice.
3. Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
Miscellaneous.
1. Assignment. This Agreement is personal to you, and you have no right to assign this Agreement to any party. Kaly may assign all of part of this Agreement to any party, at any time. Kaly may substitute itself, by way of unilateral novation, effective upon notice to you or upon posting to the Website, for any third party that assumes Kaly’ rights and obligations under this Agreement.
2. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties
3. No Inducement. Nothing contained in this Agreement, including any compensation paid or payable, is intended or shall be construed: (i) to require, influence, or otherwise induce or solicit a party or any of its affiliates for referrals or arranging for the referrals of persons for items or services, or recommending the ordering of any items or services, of any kind whatsoever, to any of the other parties or their affiliates, or to any other person; (ii) as splitting of any professional fees paid to Healthcare Provider; (iii) to interfere with a patient's right to choose his or her own health care provider, or with a provider’s judgment regarding the ordering of any items or health care services; or (iv) as remuneration in exchange for a disclosure of PHI or other information from a Customer or otherwise.
Arbitration.
1. Any dispute, controversy or claim arising out of or related in any manner to this Agreement which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration shall take place before a panel of one arbitrator sitting in New Jersey. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of New Jersey. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the Parties. Each Party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except that a Party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction if in its reasonable judgment such action is necessary to avoid irreparable harm.
Attorney’s Fees.
1. In the event there is any dispute concerning or arising out of this Agreement and, as a result, a Party incurs attorneys’ fees for the purpose of enforcing any provision of this Agreement or in defending any claims asserted by the other Party with respect to this Agreement, each Party shall be solely responsible for its own costs and attorney’s fees incurred in connection with the dispute, regardless of whether or not a lawsuit is actually filed and irrespective of which Party prevails in such legal proceedings.
Force Majeure.
1. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, pandemic, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five business days of its occurrence. Should a Party experience a force majeure event, it shall take reasonable measures to mitigate any impact that such event has on its performance of this Agreement, and shall take all reasonable steps to perform despite such event.
Severability.
1. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
Headings; Construction.
1. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they pertain. This Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
Entire Agreement.
1. This Agreement, any exhibits or addenda hereto, and the policies referred to herein, constitute the entire agreement between the parties and supersede all previous or contemporaneous agreements, promises, representations, whether written or oral, between the parties with respect to the subject matter hereof.
Independent Contractors.
1. The relationship of the Parties shall be that of independent contractors. Any employee, servant, subcontractor or agent of Kaly who is assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of Kaly and shall not be deemed to be an employee, servant, subcontractor or agent of Healthcare Provider. Neither Party will represent that it has any authority to bind the other, or assume or create any obligation, express or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity, except as specifically provided herein.
Notice
1. Any notice under this Agreement must be in writing and mailed by registered or certified mail, return receipt requested, postage page, in all instances, and with a copy sent by electronic mail, as follows:
  If to Kaly:
  Kaly, LLC
  c/o Wilson Elser
  Attn: Neil Prupis
  200 Campus Drive
  Florham Park, NJ 07932
  hello@kaly.com
  
  If to Healthcare Provider:
  To the mailing address and email address specified in Schedule D to this Agreement.

BY CLICKING ON THE “ACCEPT” BUTTON OR DOWNLOADING, ACCESSING OR OTHERWISE USING THE WEBSITE, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND HEALTHCARE PROVIDER AND ITS MEMBERS AND EMPLOYEES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY HEALTHCARE PROVIDER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND HEALTHCARE PROVIDER THEN DO NOT CLICK THE “ACCEPT” BUTTON AND HEALTHCARE PROVIDER IS NOT LICENSED OR PERMITTED TO USE THE WEBSITE. ALL OTHER USES OF THE WEBSITE ARE STRICTLY PROHIBITED.

SCHEDULE A

INSERT A LIST OF MEMBERS AND EMPLOYEES HERE:

SCHEDULE B

Insert here a description of the patient scoring information and a drop down menu for the minimum scores for connection to the Healthcare Provider.

SCHEDULE C

Insert here form for the information that Healthcare Provider has to provide to Kaly: full name, address, phone number, fax number, insurance accepted, any logo to be included on the Page

SCHEDULE D

Insert form for Healthcare Provider to provide mailing address and email address for notice here.

EXHIBIT A

HIPAA Business Associate Agreement

This Business Associate Agreement (the “BAA”) is entered into between Healthcare Provider and Kaly, LLC to be effective on the date on which the main Agreement between Healthcare Provider and Kaly becomes effective.

Definitions
- Catch-all definitions:
  - The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules: Breach, Breach Notification, Data Aggregation, Designated Record Set, De-Identified Information, Disclosure (Disclose), Electronic Protected Health Information, Electronic Transactions Rule, Enforcement Rule, Genetic Information, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Sale, Secretary, Security Incident, Security Rule, Subcontractor, Transaction, Unsecured Protected Health Information, and Use.
- Specific definitions:
  1. “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 C.F.R. § 160.103, and in reference to the party to this agreement, shall mean Kaly, LLC.
  2. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 C.F.R. § 160.103, and in reference to the party to this Agreement, shall mean Healthcare Provider.
  3. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.
  4. “HITECH Act” shall mean the Health Information Technology for Economic and Clinical Health Act.
Obligations and Activities of Business Associate
- Business Associate agrees to:
  1. Not Use or Disclose Protected Health Information other than as permitted or required by the BAA or as Required by Law;
  2. Use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by the BAA;
  3. Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by the BAA of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 C.F.R. § 164.410, and any Security Incident of which it becomes aware;
  4. In accordance with 45 C.F.R. §§ 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;
  5. Make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524, including furnishing upon Covered Entity’s request or direction an electronic copy of Protected Health Information that is maintained in a Designated Record Set;
  6. Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526;
  7. Maintain and make available the information required to provide an accounting of Disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528.
  8. To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 C.F.R. Part 164 (“Privacy of Individually Identifiable Health Information”), comply with the requirements of such Subpart E that apply to the Covered Entity in the performance of such obligation(s);
  9. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules;
  10. Not participate in any Sale of Protected Health Information;
  11. Not Use or Disclose Genetic Information for underwriting purposes in violation of the HIPAA Rules;
  12. Comply with the Electronic Transaction Rule and any applicable corresponding requirements adopted by HHS with respect to any Electronic Transactions conducted by Business Associate on behalf of Covered Entity in connection with the services provided under this BAA.
Representations of Business Associate
- Business Associate agrees that it is directly liable under the HIPAA Rules and the HITECH Act and is subject to civil and, in some cases, criminal penalties for making Uses and Disclosures of Protected Health Information that are not authorized by this BAA or Required by Law. Business Associate also acknowledges that it is liable and subject to civil penalties for failing to safeguard Electronic Protected Health Information in accordance with the HIPAA Security Rule.
Permitted Uses and Disclosures by Business Associate
- Business Associate shall not Use or Disclose Protected Health Information relating to Covered Entity, except as expressly permitted under and consistent with this Section 4.
  1. Business Associate may Use or Disclose Protected Health Information as Required by Law.
  2. Business Associate agrees to make Uses and Disclosures and requests for Protected Health Information consistent with Covered Entity’s Minimum Necessary policies and procedures, a copy of which has been furnished to Business Associate.
  3. Business Associate may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.
Notification of Breach
- If Business Associate discovers a Breach of Protected Health Information, the Business Associate shall, following the discovery of the Breach of Unsecured Protected Health Information, notify the Covered Entity of such breach in accordance with this Section 5.
  1. A Breach is treated as discovered by Business Associate on the first day on which such breach is known to Business Associate or, by exercising reasonable diligence, would have been known to Business Associate. Business Associate shall be deemed to have knowledge of a Breach if the Breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Breach, who is an employee, officer, or other agent of Business Associate.
  2. Business Associate shall provide the notification required under this Section 6 without unreasonable delay and in no case later than 60 calendar days after discovery of the Breach.
  3. The notification shall include, to the extent possible, the identification of each individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, or disclosed during the Breach.
  4. Business Associate shall provide the Covered Entity with any other available information that the Covered Entity is required to include in notification to the individual under 45 C.F.R. § 164.404(c) at the time of the notification by Business Associate, and any information that is not then available promptly after such information becomes available. Information to be provided includes, to the extent possible:
    1. A brief description of what happened, including the date of the Breach and the date of the discovery of the Breach, if known;
    2. A description of the types of Unsecured Protected Health Information that were involved in the Breach (such as whether full name, social security number, date of birth, home address, account number, diagnosis, disability code, or other types of information were involved); and
    3. A brief description of what Business Associate is doing to investigate the Breach, to mitigate harm to Individuals, and to protect against any further Breaches.
Term and Termination
1. Term. The Term of this Agreement shall be effective as of the Effective Date and shall terminate on as described in the Agreement.
2. Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate shall return to Covered Entity (or, if agreed to by Covered Entity, destroy) all Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, that the Business Associate still maintains in any form. Business Associate shall retain no copies of the Protected Health Information.
3. Survival. The obligations of Business Associate under this Section shall survive the termination of this Agreement.
Miscellaneous
1. Regulatory References. A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended.
2. Amendment. The parties agree to take such action as is necessary to amend this BAA from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law. Any amendment to this BAA must be in writing and signed by both parties.
3. Interpretation. Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.
4. Governing law. This BAA shall be governed by the laws of the State of New Jersey, except to the extent preempted by federal law.
5. Severability. The provisions of this BAA shall be severable, and the invalidity of any provision shall not affect the validity of other provisions.
6. Entire Agreement. This BAA contains the entire agreement between the parties regarding this subject matter. This BAA supersedes all prior agreements, understandings or writings, whether oral or written with regard to this subject matter.
7. Notice. Any notice required under this BAA shall be in writing and shall be given by (i) delivery in person, (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by electronic mail to the address of the party specified in this BAA or such other address as either party may specify in writing.

CCPA Addendum

This Addendum modifies the Agreement with respect to patients that are residents of the State of California.

Definitions. The following definitions and rules of interpretation apply in this Addendum, in addition to the definitions set forth in the Agreement:
1. CCPA means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including personal information and business purposes, carry the same meaning in this Addendum.
2. Contracted Business Purposes means the services described in the Agreement, or for any other purpose specifically identified in Appendix A below for which Healthcare Provider receives or accesses personal information.
Healthcare Provider’s CCPA Obligations
1. Healthcare Provider will only collect, use, retain, or disclose personal information for the Contracted Business Purposes for which Kaly provides or permits personal information access in accordance with the Agreement and Kaly’s instructions.
2. Healthcare Provider will not collect, use, retain, disclose, sell, or otherwise make personal information available for Healthcare Provider’s own commercial purposes or in a way that does not comply with the CCPA. If a law requires the Healthcare Provider to disclose personal information for a purpose unrelated to the Contracted Business Purpose, the Healthcare Provider must first inform Kaly of the legal requirement and give Kaly an opportunity to object or challenge the requirement, unless the law prohibits such notice.
3. Healthcare Provider will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose.
4. Healthcare Provider must promptly comply with any Kaly’s request or instruction requiring Healthcare Provider to provide, amend, transfer, or delete the personal information, or to stop, mitigate, or remedy any unauthorized processing.
5. If the Contracted Business Purposes require the collection of personal information from individuals on Kaly’s behalf, Healthcare Provider will always provide a CCPA-compliant notice addressing use and collection methods that Kaly specifically pre-approves in writing. Healthcare Provider will not modify or alter the notice in any way without Kaly’s prior written consent.
6. If the CCPA permits, Healthcare Provider may aggregate, deidentify, or anonymize personal information by acceptable methods under the CCPA, so it no longer meets the personal information definition, and may use such aggregated, deidentified, or anonymized data for its own research and development purposes. Healthcare Provider will not attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying such data.
Assistance with Kaly’s CCPA Obligations
1. Healthcare Provider will reasonably cooperate and assist Kaly with meeting Kaly’s CCPA compliance obligations and responding to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account the nature of Healthcare Provider’s processing and the information available to Healthcare Provider.
2. Healthcare Provider must notify Kaly immediately if it receives any complaint, notice, or communication that directly or indirectly relates to either party’s compliance with the CCPA. Specifically, Healthcare Provider must notify Kaly within 10 working days if it receives a verifiable consumer request under the CCPA.
Subcontracting
- Healthcare Provider may not use subcontractors to provide the Contracted Business Services.
CCPA Warranties
1. Both parties will comply with all applicable requirements of the CCPA when collecting, using, retaining, or disclosing personal information.
2. Healthcare Provider certifies that it understands this Addendum’s and the CCPA’s restrictions and prohibitions on selling personal information and retaining, using, or disclosing personal information outside of the parties’ direct business relationship, and it will comply with them.
3. Healthcare Provider warrants that it has no reason to believe any CCPA requirements or restrictions prevent it from providing any of the Contracted Business Purposes or otherwise performing under this Addendum. Healthcare Provider must promptly notify Kaly of any changes to the CCPA’s requirements that may adversely affect its performance under the Addendum.

APPENDIX A

PERSONAL INFORMATION PROCESSING PURPOSES AND DETAILS

Contracted Business Purposes: Advertising, marketing, CRM, payment processing and other business managements services
Personal Information Categories: This Agreement involves the following types of Personal Information, as defined and classified in CCPA Cal. Civ. Code § 1798.140(o).

Categories	Examples of Data	Collected?
A. Identifiers.	A real name, email address, telephone number, postal address, online identifier, user ID, device ID, domain server, type of device/operating system, browser used to access our services, Internet Protocol address, account name, driver's license number, passport number, or other similar identifiers.	YES
B. Personal information categories listed in the California Customer Records statute (Cal. Civ. Code § 1798.80(e)).	A real name, email address, telephone number, postal address, passport number, driver's license or state identification card number, insurance information (including insurance carrier, insurance plan, member ID, group ID, payer ID), education, employment, employment history, medical information, or health insurance information. Some personal information included in this category may overlap with other categories.	YES
C. Protected classification characteristics under California or federal law.	Age, race, ethnicity, color, ancestry, national origin, citizenship, zip code, religion or creed, marital status, medical condition, physical or mental disability, sex (including gender, gender identity, gender expression, pregnancy or childbirth and related medical conditions), sexual orientation, veteran or military status, genetic information (including familial genetic information).	YES
D. Commercial information.	Records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies.	NO
E. Biometric information.	Genetic, physiological, behavioral, and biological characteristics, or activity patterns used to extract a template or other identifier or identifying information, such as, fingerprints, faceprints, and voiceprints, iris or retina scans, keystroke, gait, or other physical patterns, and sleep or exercise data.	NO
F. Internet or other similar network activity.	Browsing history, search history, information on a consumer's interaction with a website, application, or advertisement, referring webpage/source through which you access our services, non-identifiable request IDs, and statistics associated with the interaction between device or browser and our services.	YES
G. Geolocation data.	Approximate location (city and state) of the device from which you access out services.	YES
H. Sensory data.	Audio, electronic, visual, thermal, olfactory, or similar information.	NO
I. Professional or employment-related information.	Current or past job history.	YES
J. Non-public education information (per the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g, 34 C.F.R. Part 99)).	Education records directly related to a student maintained by an educational institution or party acting on its behalf, such as grades, transcripts, class lists, student schedules, student identification codes, student financial information, or student disciplinary records.	NO
K. Inferences drawn from other personal information.	Profile reflecting a person's preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.	NO
L. Medical Data	Medical history and health information you provide us, including health conditions, healthcare providers visited, reasons for visit, dates of visit, booking and appointment data (including appointment date/time, provider information, appointment procedure, whether or not user is a new patient for a particular provider).	YES
M. Other Identifying Information That You Voluntarily Chose to Provide	Personal Data in emails, letters or online forms that you send or submit to us.	YES