Clinician terms

Clinician Terms of Service

Last Updated: May 29, 2016

Welcome! We’re Kip Labs, Inc. (“Kip”). We provide a platform for data sharing and online communication between you (i.e., a mental healthcare provider "Clinician") and your clients (“Clients”) through our website located at kiphealth.com (the “Site”) and our mobile application (the “App”). Please read these Terms of Service (the “Terms”) and our Privacy Policy carefully because they govern your use of our Site and our services accessible via our Site and our App (“App”). To make these Terms easier to read, the Site, our services and App are collectively called the “Services.”

ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND KIP WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

Agreement to Terms

YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES.

Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.

Changes to Terms or Services

We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site, via the App or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site or via the App, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

Our Services and Your Responsibility

Kip provides a platform for communication between you (i.e., a Clinician) and your Clients for limited purposes. Kip does not provide any medical advice, diagnosis, or treatment suggestions. This is your responsibility as their Clinician. Any health information services, suggestions, or other content on the Services are for informational purposes only. You assume full responsibility for the use of any information shared and obtained through the Services and agree that we’re not responsible or liable for any claim, loss, or damage arising from using that information. If you rely on any information provided by us or on the Services, you do so at your own risk. Kip does not guarantee response times for any communications between you and your Client using the Services. The Services are not designed or intended for use in emergency situations. Emergency and urgent questions and situations should be directed immediately by telephone or in-person to qualified professionals (e.g., in the United States, call 911 and/or visit an urgent care center).

Kip does not provide, nor does our Service include, mental health care or professional service related to medical care. Rather, we are a technology provider that provides a platform or space in which Clinicians can provide these services to Clients. Clinicians offering services through the Service are not employees or agents of Kip, nor are they associate with Kip in any way.

As a Clinician, you are required to obtain the clients informed consent before treatment or use of the Service. Kip does not endorse any Clinicians nor any methods or actions that may be found on this Service. It is the responsibility of the Clients to verify the competency of the Clinician.

BUSINESS ASSOCIATE AGREEMENT (BAA):

By agreeing to these terms and conditions you also agree to the terms in Kip's Business Associate Agreement. It is your responsibility to sign a Business Associate Agreement with Kip before adding any individually identifiable health information to Kip. If you have questions about the BAA or would like to request a copy of your BAA , please contact hi@kiphealth.com.

MEDICAL ADVICE:

The Information contained on our Website or in our Service is not and should not be considered medical advice. No representation or warranty is made that any particular drug or treatment is safe, appropriate or effective, and Kip does not endorse or advocate any treatment method.

FEES AND BILLING

Kip Health provides the Service for the fees and other charges set forth on the kiphealth.com website. Kip Health may add new services for additional fees and charges, or prospectively amend fees and charges for existing Service. You acknowledge that it is your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by Kip Health continue to be valid and sufficient for such purposes. Kip Health may exercise its suspension or termination rights as provided in Section 14 in the event of any payment delinquency.

Who May Use the Services

Eligibility

You may only use the Services if you are a Clinician or a Client invited by a Clinician.

When inviting Clients, it is your responsibility to ensure that your Client is (i) be over the age of 13, unless, if you are under the age of 13, a parent or legal guardian has granted you permission to use the Services with the Client; (ii) be a resident of the same State as your Client; (iii) have a doctor-client relationship with the Client you have registered for the Services; and (iv) are not barred from using the Services under applicable law. Any access to or use of the Services by anyone under 13 without the written consent of a parent or legal guardian is expressly prohibited.

Registration and Your Information

If you want to use the Services as a Clinician you’ll have to create an account (“Clinician Account”). To create a Clinician Account, you must first sign up via the Kip website and be authorized to access the Services by Kip.

It’s important that you provide us with accurate, complete and up-to-date information for your Clinician Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Clinician Account. You agree that you won’t disclose your Clinician Account password to anyone and you’ll notify us immediately of any unauthorized use of your Clinician Account. You’re responsible for all activities that occur under your Clinician Account, whether or not you know about them.

Website Information

The information on the Website including, and without limitation, information regarding pricing, may contain typographical errors or other errors or inaccuracies, and may not be complete or current. Kip reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. Kip does not guarantee that any such errors, inaccuracies, or omissions will be corrected. Kip reserves the right to refuse to fill any orders or provide Service that are based on inaccurate or erroneous information on the Website, including incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.

Feedback

We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at hi@kiphealth.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

Interruption of Service

Kip may on occasion need to interrupt the Service with or without prior notice to protect the integrity or functionality of the Service. You agree that Kip will not be liable for any interruption of the Service (whether intentional or not), and you understand that you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of loss of any Clinician Content or Client Content, we will not be liable for any purported damage or harm arising therefrom.

Content and Content Rights

For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; (ii) “Kip Content” means Content that Kip makes available through the Services, including any Content licensed from a third party, but excluding Client Content and Clinician Content; (iii) “Client Content” means any Content that Client Account holders (including you) provide to be made available through the Services, including but not limited to responses you as their Clinician questions or requests for information; and (iv) “Clinician Content” means Content that a Clinician uploads, publishes, submits or transmits to be made available through the Services including but not limited to correspondence with your Client, such as any questions or requests for information. Content includes without limitation Kip Content, Client Content and Clinician Content.

Content Ownership, Responsibility and Removal

Kip does not claim any ownership rights in any Clinician Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Clinician Content. Subject to the foregoing, Kip and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

Rights in Content Granted by Kip

Subject to your compliance with these Terms, Kip grants you a limited, non-exclusive, non-transferable, non-sub-licensable license solely in connection with your permitted use of the Services to view, download and use the Content solely for your personal and non-commercial purposes.

Rights in Clinician Content Granted by You

By making available any Clinician Content on or through the Services, you hereby grant to Kip a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, reproduce and distribute such Clinician Content only on, through or by means of the Services for the sole purpose of providing the Services to you and your Clients. You are solely responsible for all your Clinician Content. You represent and warrant that you own all your Clinician Content or you have all rights that are necessary to grant us the license rights in your Clinician Content under these Terms. You also represent and warrant that neither your Clinician Content, nor your use and provision of your Clinician Content to be made available through the Services, nor any use of your Clinician Content by Kip on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Sharing of Clinician Content (including your Client’s Health Information) with your Client Clinician Content (including individually identifiable health information) that you submit or upload onto the Services is shared with your Client for the benefit of your Client and will be made available to your Client. Kip does not claim any rights in or to individually identifiable health information about your Client. Kip does not control your Client’s use or disclosure of your Clinician Content or their individually identifiable health information. Your should give your Clients notice of privacy practices that describes how you use and disclose health information about you. Kip does not store a Client’s complete medical records.

You and your Client control who has access to a Client’s individually identifiable health information. Access to your Clinician Account and Clinician Content and any Client information stored in your Clinician account is obtained through passwords, personal identification numbers and other login credentials that we provide to your Clinician. We do not control the distribution of those login credentials. We will give access to a client’s individually identifiable health information to anyone who logs on to it using the correct login credentials. You should safeguard your login credentials carefully and not share them with anyone else. If you believe someone else has unauthorized access to your client’s individually identifiable health information, please contact us at accounts@kiphealth.com.

Your ability as a Clinician to disclose your Client’s health information for these and similar purposes is restricted by federal and state law, including the Health Information Portability and Accountability Act (HIPAA). We may also use your client’s health information to operate our Services, and we may give it to our service providers to assist us in providing the Services. We may disclose it if we are compelled to do so by law, including valid legal process. In order to maintain the security of your Clinician Account, we may log access to it, and we may maintain the log until we determine it is no longer needed. Except as provided above, we will not use or disclose individually identifiable information about you or your clients to third parties. We may use individually identifiable health information that you submit as part of the Services to create de-identified information (i.e., information that does not identify you), and we may use or disclose de-identified information without restriction. You transfer and assign to us all right, title and interest in and to all such de-identified information, and you agree that we may use, disclose, market, license and sell such de-Identified information for any purpose without restriction, and that you have no interest in such de-identified information, or in the proceeds of any sale, license, or other commercialization thereof. We use IP addresses to analyze trends, administer the site and gather broad demographic information for aggregate use. IP addresses are not linked to individually identifiable information.

Modifying or Deleting Your Clinician Content.

Because certain of your Clinician Content becomes part of a Client health record, you cannot delete it. If you want us to modify or delete your Clinician Content or a Client’s Client Contact, please contact us. We’ll work with you, and, if appropriate, we’ll take steps to modify or delete information as soon as we can, but please note that some information may remain in archived/backup copies for our records or as otherwise required by law. If you have questions, please contact accounts@kiphealth.com. For more information on how your information may be used, please see our Privacy Policy.

Use of the App

Subject to your compliance with these Terms, Kip grants you a limited non-exclusive, non-transferable, non-sublicenseable license to use Kip on a desktop or mobile device that you own or control and use the app solely for your personal use. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Kip reserves all rights in and to the App not expressly granted to you under these Terms.

General Prohibitions and Enforcement Rights

You agree not to do any of the following:

Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

DMCA/Copyright Policy

Kip respects copyright law and expects its users to do the same. It is Kip’s policy to terminate in appropriate circumstances Clinician Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Kip's Copyright and IP Policy for further information.

Links to Third Party Websites or Resources

The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

Termination

We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Clinician Account at any time by sending an email to us at accounts@kiphealth.com. Upon any termination, discontinuation or cancellation of Services or your Clinician Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.

Warranty Disclaimers

The Services AND CONTENT are provided BY US “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KIP OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Indemnity

You will indemnify and hold harmless Kip and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your Clinician Content, or (iii) your violation of these Terms.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES REMAINS WITH YOU AND/OR THE CLINICIAN WHO AUTHORIZED YOUR ACCESS TO THE SERVICES. NEITHER KIP NOR ANY OTHER party involved in creating, producing, or delivering the services OR CONTENT will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with THESE TERMS or from the use OF or inability to use the ServiceS or CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not KIP has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

In no event will KIP’s total liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the ServiceS or content EXCEED ONE HUNDRED DOLLARS ($100). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KIP AND YOU.

Dispute Resolution

Governing Law

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.

Agreement to Arbitrate

You and Kip agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Kip with written notice of your desire to do so by email or regular mail at 50 Hawthorne Street, San Francisco, CA 94105 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Kip with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Kip with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Kip with an Arbitration Opt-out Notice, you acknowledge and agree that you and Kip are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Kip otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure

Unless you and Kip otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Kip submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Kip will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Kip will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes

Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Kip changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to hi@kiphealth.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Kip's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kip in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

General Terms

These Terms constitute the entire and exclusive understanding and agreement between Kip and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Kip and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Kip's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Kip may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by Kip under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Kip's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kip. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Contact Information

If you have any questions about these Terms or the Services, please contact Kip at hi@kiphealth.com 77 Van Ness Ave, San Francisco, CA 94105.