TERMS

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Kipu Systems, LLC, Terms of Service

The following terms and conditions constitute the “Terms of Service”, are part of Your Contract with Kipu Systems, LLC, and govern Your acquisition and use of all services provided by Kipu Systems, LLC (“Service”).

Any new features that augment or enhance the current Service, including, without limitation, the release of new tools and resources, shall be subject to these Terms of Service.

“We,” “Us,” or “Our” as used hereunder refers to Kipu Systems, LLC.

“Client,” “You,” or “Your” as used hereunder refers to the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.

“User” or “Users” refers to individuals who are authorized by You to use the Service. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

1 Payment, Refunds, Upgrading and Downgrading Terms

The Service is billed on a monthly basis; payments are due within fifteen (15) days of receipt of invoice and are non-refundable. In the event payment is not made by the due date, we may discontinue The Service and or charge the greater of $250 per month per invoice or a Five Percent (5%) late fee for each month each invoice remains unpaid, as allowed by law.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities with respect to Your purchase and use of the Service (other than taxes due on or with respect to the income of Kipu Systems, LLC).

We offer additional support and training services and features which may not be part of your contract. When requesting the addition (upgrade) or removal (downgrade) of services and features, Your account will be charged the new rate on Your next billing cycle, if applicable.

Downgrading Your features may cause the loss of content, features, or capacity of Your account. We do not accept any liability for such loss.

Change of Control. In the event that You undergo a change of control in ownership or management, Your Agreement will be updated to Our latest published price list and terms.

2 Cancellation, Suspension and Termination

Cancellation. You are solely responsible for properly canceling Your account. To cancel Your account, You must email support@kipusystems.com with Your company name and account number stating Your intent to cancel Your account. You will receive an email confirming that Your account is cancelled.

If You do not receive an email confirmation within three working days, please contact us via phone to confirm receipt of the message. Upon cancellation or any other termination of this Contract, You will be responsible for paying only those fees that were actually due but remain unpaid as of the effective time of cancellation or termination.

Suspension. If You are on a Per-Patient Plan and Your account does not show any new Patients over the course of three months, the account will be suspended. User access to the Service will be denied and the data will be frozen. To reactivate Your account You will have to contact support@kipusystems.com or the help desk. There is no charge to reactivate the account.

Termination. If Your account has been suspended for 3 months and You have not contacted Us to reactivate it, Your account will be terminated.

Upon cancellation or termination, We will prepare a copy of all Patient records in a secured PDF format and deliver it to You on a disc or hard drive by courier to Your contact address, and all of Your content will be deleted from the Service. After Your content has been deleted from the Service, it cannot be recovered.

Termination for Cause. Each party may terminate this Agreement: (i) upon 30 days written notice to the other party or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Violation of these Terms will subject You to immediate termination of Your access rights.

Refund or Payment upon Termination. Upon any termination by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Us, You shall pay any unpaid fees covering the remainder of the term of all orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

3 Updates to the Service/Software

We will be updating the service from time to time to add new features and fix bugs. These updates usually take a few seconds, but sometimes require a longer suspension of the Service. In such cases We will notify You at least 48 hours in advance, and We will strive to schedule it so that Your business is minimally impacted.

We provide software to support special features for tablets and other devices. If You use this software, it will automatically check if Your version is current. If it is not, You might be required to install a newer version before access to the Service is allowed.

4 Privacy and Security

All Confidential Information that is furnished to or otherwise received by Kipu Systems, LLC (whether before, on or after the date hereof and regardless of the manner in which it is received) will be used by Us solely for the purpose of performance and consummation of this Contract and will not be disclosed, distributed, transmitted, transferred, or otherwise made available, directly or indirectly, to other persons by Us without Your express written authorization. We will use such efforts to keep and protect the confidentiality of the Confidential Information as We use to protect Our own confidential information of similar import, but in no event less than a reasonable degree of care.

Pursuant to receipt of a subpoena, court order, or any other legal document of similar authority, we may release confidential information when requested. If subject to a civil matter, you may file any pleadings you wish, at your sole cost and expense, to prevent disclosure of information. If subject of a government issued subpoena, court order, or any other legal document of similar authority, the material will be released summarily.

Password Protection. Client agrees to maintain the privacy of usernames and passwords associated with the Service. Client is responsible for all activities that occur under any of its Users’ passwords or accounts. Client agrees to (i) immediately notify Kipu of any unauthorized use of any User’s password or account or any other breach of security, and (ii) ensure that every User exits from that User’s account at the end of each session. Kipu shall not be liable for any damages incurred by Client or any third party arising from any User’s failure to comply with this session.

Transmission of Data. In the event that Client elects to use an application programming interface (“API”) to provide, or requests that Kipu provide any Client data or content to any third party, Client represents that it has acquired any consents or provided any notices required to transfer such content or information and that such transfer does not violate any applicable international, federal, state, or local laws and/or regulations. Additionally, Kipu shall not be responsible for any services or data provided by any such third party.

5 Proprietary Rights

Copyright and Ownership. All content included in or made available through any Kipu product or service, such as input screens and forms, charts, text, graphics, logos, button icons, images, audio clips, digital downloads, and data compilations is the property of Kipu Systems, LLC, or its content suppliers and is protected by United States and international copyright laws. The compilation of all content included in or made available through any Kipu Product or Service is the exclusive property of Kipu Systems, LLC, and is protected by U.S. and international copyright laws. All content posted on The Service by Users of The Service must comply with U.S. copyright law.

The Service is the intellectual property of and is owned by Kipu Systems, LLC. The structure, organization, flows, processes, and source code of the Service (collectively, “Intellectual Property”) are the valuable trade secrets and confidential information of Kipu Systems, LLC. The Service is protected by law, including but not limited to the copyright laws of the United States and the Florida Uniform Trade Secrets Act, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant User any intellectual property rights in the Service. All rights not expressly granted are reserved by Kipu Systems, LLC.

In accordance with applicable law, Kipu reserves the right to retain, aggregate, and use de-identified data uploaded to its system, including but not limited to creating and publishing analytics and outcomes data. By use of the system, Client expressly authorizes such use, unless otherwise agreed to in writing.

Reservation of Rights to the Service. Subject to the limited rights expressly granted hereunder, We reserve all rights, title, and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the operation of the Services.

Ancillary Documentation. In the event that any Ancillary Documentation, including but not limited to, instructions, manuals, reference documents, You will not disclose or use any Ancillary Documentation except to the extent that You are required to disclose or use such Ancillary Documentation in use of the Service for Your own site-level administration; and You will use Your best efforts to safeguard the Ancillary Documentation and protect it against disclosure, misuse, espionage, loss, misappropriation, and theft.

You will not use or disclose Ancillary Documentation to any person or entity who is not specifically authorized in writing by Us to receive it. To the extent that Ancillary Documentation includes Intellectual Property owned by Us, You will not use or disclose such Ancillary Documentation as long as it remains Our Confidential Information. To the extent that Ancillary Documentation includes Intellectual Property owned by third parties, You will not use or disclose such Ancillary Documentation in contravention of any agreement between Us and the third party.

Look and Feel. The look and feel of the Service, including the process and flows, are copyright ©2014 Kipu Systems, LLC. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without express written permission from Us. Portions may be Patent Pending.

6 Warranties and Disclaimers

Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall be performed as defined in Your contract, the functionality of the Services will not be materially decreased during a subscription term, and (iii) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (ii) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 2 Termination for Cause and Refund or Payment upon Termination.

Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

Beta Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Beta Services“). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.

7 Mutual Indemnifications

Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

Exclusive Remedy. This Section Mutual Indemnification states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

8 Binding Arbitration; Jurisdiction

The parties agree to resolve any controversy, dispute, or claim arising out of or relating to your purchase of any product or service from Kipu Systems by binding Arbitration administered by the American Arbitration Association, in Miami-Dade County, Florida.

In the event of a dispute involving Intellectual Property, including copyright, trademark, or any other cause of action provided for by law, venue shall be proper in the appropriate Federal or State Court, as dictated by the cause of action, with jurisdiction over Miami-Dade County, Florida.

The prevailing party shall be awarded reasonable attorney’s fees and other costs.

9 Liquidated Damages and Maximum Liability

As consideration for being granted access to the system, Client covenants not to sue Kipu, its employees and officers for any claims based on the use thereof for any and all indirect, punitive, special, incidental, or consequential damage (including loss of business, revenue, profits, use, data or other economic advantage) however it arises, whether for breach or in tort, even if Kipu has been previously advised of the possibility of such damage. The parties agree that the amount of liability and damages available for any breach, interruption of service, or any other claims by Client against Kipu Systems including its employees and officers for any reason or claim is difficult to determine at the time of the execution of this agreement and that the amount the amount paid by client in the 6 months preceding the claim or incident to Kipu Systems and in no case may ever exceed the amount paid by client in the 6 months preceding the claim or incident for any reason or claim asserted. The parties agree that this amount has been reviewed and found to be a reasonable estimate to serve as liquidated damages to be submitted before binding arbitration. Client agrees it may not challenge this liquidated damages provision as being unreasonable. In the Event Kipu must discontinue The Service due to non-payment, Client agrees that Kipu shall not be responsible for damages that may result from interruption to Client’s business.

10 General Conditions

User affirms that it will not use the Service other than as permitted by this Agreement and that it will not use the Service in a manner inconsistent with its design or Documentation. Accordingly, User is authorized only to use the Service for legitimate business purposes in relation to site-level administration of its Facility.

Except as expressly permitted in writing by Kipu Systems, LLC, User may not modify, port, adapt, or translate the Service.

You may not use any robot, spider, offline reader, site search/retrieval application, or other manual or automatic device, tool, or process to access, retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Service.

User may only grant access to either the System itself or any Ancillary Documentation to a Third-Party to serve the legitimate, site-level administration business needs of its Facility, in accordance with HIPAA requirements.

By agreeing to these Terms, User affirms that neither it nor any of its officers, executives, shareholders, partners, employees, independent contractors, or other business associates of any kind are currently or will become, either directly or indirectly, an officer, executive, shareholder, partner, employee, independent contractor, advisor, consultant, or any other business associate of any kind of any business entity who does currently operate in or intends to enter into competition with Kipu Systems, LLC, during the period of time User is licensed to use the Service. If Kipu Systems, LLC, comes to know or have reasonable cause to believe that any individual User is in violation of this affirmation, Kipu Systems, LLC, reserves the right to immediately, permanently, and without notice terminate that User’s access rights and privileges. Any such use shall subject any User so found, as well as that User’s employer and any of its officers, executives, shareholders, or partners, to legal action, which may include both civil and criminal penalties, as applicable. User acknowledges that any such civil action may include, but is not limited to, relief sought in the form of: injunctive relief; actual, punitive, statutory, and/or liquidated damages; any amount of unjust enrichment accrued as a result of such use; and attorney’s fees.

Except as otherwise expressly permitted in writing by Kipu Systems, LLC, User will not reverse engineer, decompile, disassemble, or otherwise attempt to discover or reduce to human readable form the source code of the Service, except to the extent allowed under any applicable law. Any attempt to do so must utilize a clean room design. If applicable law permits such activities, any information so discovered must be promptly disclosed to Kipu Systems, LLC, and shall be deemed to be the confidential proprietary information of Kipu Systems, LLC.

Except as otherwise expressly permitted in writing by Kipu Systems, LLC, User will not access the service for the purposes of copying the flow, process, or any other Intellectual Property belonging to Kipu Systems for the purposes of incorporating any such Intellectual Property into a competitive product.

In the event that, at the conclusion of any resulting litigation, the Service is held to have been legitimately used in any manner to derive a new product, that derivative product may then only be used for noncommercial purposes and may not be marketed, distributed, or otherwise made available in any way. This provision shall not be read to authorize, explicitly or implicitly, use of the Service in such a manner.

Except otherwise provided elsewhere in this Contract, Your use of the Service is at Your sole risk and the Service is provided on an “as is” and “as available” basis.

You understand that We use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without express written permission from Us.

Subject to the warranties set forth above, We do not warrant that (i) the Service will meet Your specific requirements, or (ii) the Service will be uninterrupted, timely, secure, or error-free.

You expressly understand and agree that, except for our respective obligations under the paragraph titled “Mutual Indemnifications” above, neither party shall be liable for, and You covenant not to sue for, any indirect, incidental, special, punitive, consequential, or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses (even if We have been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; or (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service.

Either party’s failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such rights or provisions. The Terms of Service and the Contract constitutes the entire agreement between You and Us and govern Your use of the Service, superseding any prior agreements between You and Us.

In the event any of the terms or provisions of these Terms of Service shall be held to be unenforceable, the remaining terms and provisions shall be unimpaired and the unenforceable term or provision shall be replaced by such enforceable term or provision as comes closest to the intention underlying the unenforceable term or provision.

Questions about the Terms of Service should be emailed to support@kipusystems.com.

Last updated October 31, 2016

Kipu Systems LLC,
561. 349. 5901

444 Brickell Avenue,
Suite 850, Miami, FL 33131

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