(a)

PicassoMD will provide the Services to medical providers (each provider individually, a “Subscriber” or “you”) who subscribe to the Services electronically via the Site.  Upon your acceptance of this Agreement, PicassoMD grants you the non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for your internal business operations, and subject to the terms of this Agreement. Your rights to use the Services are conditional on your compliance with the terms of this Agreement.

(b)

You may use the Services commencing on the date this Agreement is executed and unless otherwise terminated in accordance with this Agreement, your Services Term shall continue on a month-to-month basis.  Either party may terminate this Agreement at any time and without penalty upon thirty (30) days written notice to the other party.

(c)

You will not, and shall not permit any other person or entity to, access or use the Services except as expressly permitted by this Agreement.  For purposes of clarity and without limiting the generality of the foregoing, you will not, except as this Agreement expressly permits: (i) copy, modify, or create derivative works or improvements of the Services; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (iv) bypass or breach any security device or protection used by the Services, or access or use the Services other than through the use of valid Access Credentials (as defined herein); (v) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code, including any virus, worm, malware, or other malicious computer code; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, or PicassoMD’s provision of services to any third party, in whole or in part; (vii) remove, delete, alter, or obscure any disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services; (viii) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party; or (ix) access or use the Services for purposes of competitive analysis, or the development, provision, or use of a competing software service or product, or any other purpose that is to the PicassoMD’s detriment or commercial disadvantage.

(d)

You must use a unique login and password to access the Services (“Access Credentials”).  Sharing of Access Credentials is prohibited.  You may not take any actions which result in access, or attempts to access, the Services from more than one computer at any one time using your Access Credentials.  You will immediately notify PicassoMD if you learn of, or suspect, any unauthorized access to or use of the Services, including through the use of your Access Credentials.  PicassoMD reserves the right, in its sole discretion and without liability to you, to take any action PicassoMD deems necessary or reasonable to ensure the security of the Services and your Access Credentials, including terminating Subscriber’s access, requiring password changes, or requesting additional information to authorize activities related to Subscriber’s account.  Subscriber is solely responsible for: (i) the security and proper use of its Access Credentials, and must take all steps necessary to ensure that Access Credentials are kept secure, confidential, used properly and not disclosed to unauthorized persons; and (ii) all activities and charges incurred in connection with Access Credentials, and activity taking place under such Access Credentials, where such charges and activities were originated using Access Credentials of the Subscriber.  PicassoMD is authorized to accept Access Credentials as conclusive evidence that the Subscriber has accessed or otherwise used the Services.

(a)

You hereby represent and warrant that you are appropriately licensed and credentialed as a medical provider as required by applicable laws and regulations.  If you are registering as a physician specialist, you further represent and warrant that you are a board-certified physician in the specified field in which you practice. If you are an allied health care professionals with specialization in specified fields, you represent and warrant that you are appropriately licensed and credentialed as required by applicable laws and regulations, and in good standing with any governmental agency or body, accreditation organization, and medical staff board or committee that has authority or oversight over the practice of medicine or provision of health care. You also hereby represent and warrant to notify PicassoMD in writing immediately should your credentialing or license to practice in the specified field as a physician or medical provider expire or otherwise be terminated.  This Agreement shall terminate automatically upon such termination or expiration of your license or credentials, and you agree not to use the Services if your licensing or credentialing is not active or in good standing.  

(b)

You further represent and warrant that you (i) are not excluded from participating in any federal healthcare programs, (ii) will comply with all applicable federal, state, and local laws, and regulations, including but not limited to the following: (1) all applicable laws and regulations regarding the provision of telehealth or telemedicine services, privacy, data security, and data protection; (2) the Health Insurance Portability and Accountability of 1996, as amended (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act as amended (“HITECH”), and the regulations implementing HIPAA and HITECH; (3) the federal False Claims Act (31 U.S.C. §§ 3729, et seq.); the laws and regulations governing the Medicare program (including Title XVIII of the Social Security Act and implementing regulations), Medicaid (including Title XIX of the Social Security Act and implementing regulations) and any other governmental health care program; the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b) and regulations promulgated thereunder; the federal Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a); the federal laws regarding exclusion from participation in Medicare and other government healthcare programs (42 U.S.C. § 1320a-7); the federal Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.); state laws, statutes, regulations, or rules that are analogues of or similar to the federal False Claims Act, Anti-Kickback Statute, Civil Monetary Penalties, or exclusion from participation in government health care programs, including but not limited to those that govern the offer, payment, solicitation, or acceptance of any remuneration in exchange for referrals, false or improper claims or representations, records, or statements in connection with false or improper claims, beneficiary or patient inducements or solicitation, exclusion from participation in any government health care program, improper patient referrals, fraud, waste, or abuse with respect to any government health care program or any other health insurer, health plan, or payer of health care items or services, or improper health care provider incentives; and (4) all laws, regulations, and rules governing the practice of medicine or other licensed health care professionals, including without limitation any restrictions on the corporate practice of medicine.

(c)

You will maintain, at your own cost, and keep in force, adequate policies providing comprehensive general liability, professional liability, and other insurance as may be necessary to insure you or your agents and employees against any claim or claims for damages arising out of the rendering of or failure to render professional services, including any professional services rendered over the Services.

(d)

In order for PicassoMD to provide Services, Subscriber grants PicassoMD a perpetual, non-exclusive, non-sublicensable, and non-transferable license to access and use the Data for the purposes and uses contemplated by this Agreement, as well as for the PicassoMD’s analytical, product development, and healthcare operations purposes, including but not limited: (i) de-identifying Data and analyzing de-identified or aggregate outcomes and utilization data for research and benchmarking purposes; (ii) disclosing de-identified curbside Data to payers of healthcare services; and (iii) disclosing identifiable curbside Data for healthcare operations purposes, including billing.  “Data” means (a) all information in electronic form, on electronic media, or on paper or other nonelectronic media, provided directly or indirectly to PicassoMD by Subscriber in connection with this Agreement for computer processing, storage, or otherwise for use by PicassoMD; and (b) all information related to Subscriber and entered in, stored in, generated by, or processed through or in connection with this Agreement..  PicassoMD shall have and maintain appropriate access controls in place to restrict access to and use of the Data in compliance with the terms of this Agreement.  PicassoMD is not responsible for any person or entity accessing, using, modifying, deleting, or disclosing Data without authorization of Subscriber when: (iv) caused by acts or omissions of Subscriber; or (v) PicassoMD is in compliance with its security policies, procedures, and controls. If any breach or unauthorized access of any network, system, server, computer, storage device, database, or file owned, controlled, or used by PicassoMD occurs or is suspected to have occurred that is related to or used in connection with the Data, PicassoMD shall as soon as practicable notify Subscriber of such breach or unauthorized access and take all such actions as are necessary to contain and remediate such breach or unauthorized access.  PicassoMD also shall assist Subscriber with any actions Subscriber may reasonably require of PicassoMD in connection with such actual or suspected breach or unauthorized access.  You hereby represent, warrant, and covenant that you have the right to provide any such Data to PicassoMD via the Services in compliance with all applicable law.

(e)

You agree to comply with abide by all applicable laws regarding the sending of electronic messages, including the CAN-SPAM Act of 2003 and HIPAA.

(f)

“User Activity Data” is any data generated in providing of services under this Agreement by PicassoMD to Subscriber, including end users’ interactions with the services including, but not limited to, user interaction data, opt-in/opt-out status (including compliance logs), session data, application diagnostic data, service performance data, and support data.  Any data that is derived from User Activity Data is also User Activity Data.  From time to time, Subscriber may submit to PicassoMD comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Services (“Feedback”).  User Activity Data and Feedback are the sole and exclusive property of PicassoMD.  PicassoMD grants Subscriber an irrevocable, royalty-free, non-exclusive, non-assignable, non-transferable and non-sublicensable license to User Activity Data for the term of this Agreement to the extent and in the format that PicassoMD chooses in its sole discretion to expose such User Activity Data through its administrative portal or as otherwise agreed upon with Subscriber and only for Subscriber’s internal use in connection with the services provided under this Agreement.

(g)

PicassoMD may use one or more third-party services, including text messaging service providers to collect and store Data, each of which will abide by the terms of this Agreement and our Privacy Policy.

(h)

PicassoMD shall have the right to use such deidentified Data at its discretion to track the medical histories and activities of your patients on a deidentified basis and to create and provide information and analytics about your patients. PicassoMD may also share individual and attributable Data with commercial payers or its customers. PicassoMD shall also have the right to track your Data, and to provide information and analytics about such Data to our clients. While you will have choices as to how to connect with other providers through the Services,PicassoMD may also use the deidentified Data to audit individual provider practices of itsSubscribers to ensure quality patient outcomes.

(b)

Payment.  Subscriber shall pay all fees as required under this Agreement.  Payments for fees shall be timely made in immediately available funds, in U.S. dollars, and without any right of set-off or deduction.  Fees paid are non-refundable, and shall be paid by ACH or credit card.  Any and all wiring or other bank fees shall be the sole responsibility of, and paid by, the Subscriber.

(c)

Late Payment.  If Subscriber fails to make any payment when due then, in addition to all other remedies that may be available: (i) PicassoMD may charge a 10% late payment fee and interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Subscriber shall reimburse PicassoMD for all reasonable costs incurred by PicassoMD in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and  (iii) if such failure continues for thirty (30) days following written notice thereof, PicassoMD may suspend performance of the services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Subscriber by reason of such suspension.

(a)

PicassoMD (and/or its affiliates, third-party licensors, and/or suppliers) retain all rights, titles and interests in and to the Services. All rights in the Services not expressly granted in this Agreement are reserved by PicassoMD (and/or its affiliates, third-party licensors, and suppliers). The Services and accompanying written materials and collateral (if any) (collectively, “Materials”) are protected by copyright laws and international treaty provisions.  PicassoMD and its licensors and suppliers own and retain all rights, titles and interests in and to the Services and Materials, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein.  You acknowledge that your access or use of the Services does not transfer to you any title to the intellectual property in the Services, and that you will not acquire any rights to the Services except as expressly set forth in this Agreement.

(a)

You may terminate this Agreement at any time by providing us with thirty (30) days’ advance written notice of termination.

(b)

PicassoMD has the right to terminate your subscription and this Agreement at its convenience upon a thirty (30) day notice.  In the event it does so, you will be refunded for the balance of any pre-paid subscription cost, prorated for the length of your term.

(c)

PicassoMD may also terminate the Agreement immediately upon the occurrence of any of the following: (i) Subscriber applies for or consents to the appointment of a receiver, trustee or liquidator of all or substantially all of its assets, files a petition in bankruptcy or makes an assignment for the benefit of creditors, or upon other action taken or suffered by Subscriber, voluntarily or involuntarily, under any law for the benefit of creditors; (ii) in the course of accessing or using of the Services, or the performance or exercise of any obligation or right under this Agreement, Subscriber violates or is alleged to violate any applicable law, regulation, or rule regarding the provision of or payment for medical or health care or the conduct or operation of a health plan, health insurer, payer of health care services, or administrator of a health plan health insurer, payer or health care services, or network of health care providers; (iii) there is a revocation, suspension, cancellation or restriction, in any manner, of the license to practice medicine or any other professional services of Subscriber; (iv) Subscriber breaches or is found to be in breach of any of the covenants, representations, or warranties under this Agreement; (v) Subscriber is convicted of a criminal offense in connection with the Services or information provided pursuant to this Agreement; (vi) Subscriber breaches this Agreement, and such breach is incapable of cure; or being capable of cure, remains uncured thirty (30) days after PicassoMD provides Subscriber with written notice of such breach; or (vii) if Subscriber fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after PicassoMD’s delivery of written notice thereof.

(a)

You shall indemnify, defend and hold harmless PicassoMD and our affiliates, directors, officers, employees, shareholders and agents, from and against any and all liabilities, claims, damages, costs, injuries or losses arising out of or relating to your use of the Services resulting from any third party claim, suit, action or proceeding based on (i) any third party claims related to negative patient outcomes or medical malpractice with respect to the Services, (ii) your Data, (iii) your breach of the Agreement or your use of the Services in any manner not authorized by this Agreement, or (iv) your failure to comply with any applicable law or regulation, including privacy, data security or data protection laws and regulations. This section shall survive the completion, expiration, termination or cancellation of this Agreement.  PicassoMD may at its own expense participate in the defense and settlement of any claim with its own counsel, and you may not settle a claim without PicassoMD’s prior written consent (not to be unreasonably withheld), unless the settlement, compromise or consent provides for and includes an express, unconditional release of such claims against PicassoMD.

(b)

TO THE FULLEST EXENT PERMITTED BY LAW, IN NO EVENT WILL PICSSOMD BE LIABLE (i) FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, PRIVACY OR DATA PROTECTION BREACH, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, COST OF REPLACEMENT GOODS OR SERVICES, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR LOST DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR (ii) IN ANY EVENT, FOR ANY DAMAGES OR LIABILITIES EXCEEDING ONE HUNDRED U.S. DOLLARS ($100).  SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH REFLECTS A REASONABLE ALLOCATION OF RISK AND THAT PICASSOMD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIABILITY LIMITATIONS.

(a)

This Agreement and the BAA constitute the entire agreement and understanding between you and PicassoMD and supersedes prior agreements between you and PicassoMD.

(b)

We may modify this Agreement’s terms and conditions at any time with notice to you and continued use of the Services after a change in this Agreement or after implementation of any other new policy constitutes acceptance of such change or policy.

(c)

This Agreement will be governed by the laws of Delaware, and any action based on or alleging a breach of this Agreement must be brought in a state or federal court in state of Delaware and the Parties hereby consent to the exclusive jurisdiction of such courts. The parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods, the Convention on the Use of Electronic Communications in International Contracts, and the Uniform Computer Information Transactions Act.  In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

(d)

The parties are independent contractors, and this Agreement is not intended to and does not create any partnership, joint venture, or fiduciary or employment relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner.