License Agreement - General Terms and Conditions

Welcome to WellnessCheck®, a website and related Outcomes Management Services (OMS) operated by Outcome Referrals, Inc. , collectively the "Outcome Referrals OMS". This license agreement may be amended from time to time. The "Agreement" is a contract between you and Outcome Referrals that describes the terms and conditions applicable to your use of Outcome Referrals OMS. Before using any of these services, you must read and accept the terms and conditions contained in this Agreement. If you do not agree to this Agreement, you will not be able to use Outcome Referrals OMS. By clicking the "yes" button, you agree to be bound by these terms and conditions. If you do not agree to be bound by these terms and conditions, you should click the "no" button and your account will not be activated or your service will be terminated, as applicable.

Definitions

The terms "you", "your", "user" or "organization" are synonymous, and refer to the person or organization using Outcome Referrals OMS in any way. An organization may assign multiple individuals to access the Outcome Referrals OMS. Each assigned individual is a user and bound by this Agreement.

A "Registered User" is a User from whom Outcome Referrals has received the information necessary to permit such person or organization to collect, process, score, and analyze outcome data through Outcome Referrals OMS and who fully complies with all terms and conditions of this Agreement.

"Signing User" refers to the User that binds an Organization to this Agreement, and is responsible for ensuring that all other Registered Users within the Organization comply with this Agreement, and must be duly authorized by the Organization to enter into the Agreement and ensure compliance.

"Content" refers to all aspects of the Outcome Referrals OMS and includes forms and tools that may be available in paper and carry the Outcome Referrals logo and/or Outcome Referrals Copyright, and any related fax-based processing infrastructure, or electronic formats, code or algorithms on WellnessCheck.net, WellnessCheck.com, BHealthLabs.com, or other websites, and Outcome Referrals OMS aggregated or warehoused data.

"OMS Data" is any data collected or stored by Outcome Referrals.

  1. License Grant. Outcome Referrals grants a limited, non-exclusive, non-transferable license to use Outcome Referrals OMS solely to collect and process outcome data for your personal or organizational use after proper registration and any applicable payment.

    You must be a Registered User:

    1. to be eligible for the guarantees described below; and

    2. in order for Outcome Referrals to save your OMS data for your future access.

    Except as expressly stated, you are not licensed or permitted to do any of the following:

    1. attempt to access any Outcome Referrals systems, programs or data that are not made available for public use;

    2. use Outcome Referrals OMS for any consulting or commercial basis (e.g., to assist other organizations in collecting OMS data or to facilitate the modification or development of competitive OMS);

    3. copy, reproduce, republish, upload, post, transmit, resell or distribute in any way Outcome Referrals OMS content and material from any Outcome Referrals web site, Outcome Referrals fax transmission, email, or communication;

    4. attempt any actions that would prevent the use of Outcome Referrals OMS by the public;

    5. frame all or part of the Outcome Referrals Products (unless expressly allowed to do so in a separate written agreement with Outcome Referrals);

    6. change or delete any proprietary notices from materials downloaded or printed out from the Outcome Referrals OMS;

    7. systematically download or print materials from the Outcome Referrals OMS (unless expressly allowed to do so in a separate written agreement with Outcome Referrals);

    8. transmit or provide any data from the Outcome Referrals OMS to a third party (unless expressly allowed to do so in a separate written agreement with Outcome Referrals);

    9. make the material available through any means or media other than as shown on the Outcome Referrals web site (unless expressly allowed to do so in a separate written agreement with Outcome Referrals);

    10. use Outcome Referrals OMS in a manner contrary to any applicable law;

    11. enter false, inaccurate, or otherwise misleading information into the Outcome Referrals OMS including "testing" data;

    12. register to use Outcome Referrals OMS as a healthcare professional if you are not licensed and qualified to treat and assess the conditions measured by Outcome Referrals OMS;

    13. continue to use Outcome Referrals OMS after making negative public statements about the Outcome Referrals or any aspect of the Outcome Referrals OMS.

    You understand that the value of Outcome Referrals OMS to you and other users is in the ability to aggregate accurate and timely patient data that facilitates more informed treatment decision-making, and that violation of these licensing terms could affect the accuracy of this data and negatively impact patient care delivered by others. Furthermore, you agree that if you are found in violation of this Agreement, you will pay Outcome Referrals legal fees and all costs necessary to repair and restore the Outcome Referrals OMS. In addition, you agree that Outcome Referrals is not acting as a healthcare provider and it is the responsibility of the healthcare consumer and their licensed healthcare providers to determine the accuracy and usefulness of the data, suggestions, and results delivered from the Outcome Referrals OMS and to make appropriate healthcare decisions.

  2. Use of Content. Outcome Referrals authorizes you to view or download a single copy of Outcome Referrals OMS Content solely for your personal, noncommercial use. Any special rules for the use of certain software and other items accessible on the Outcome Referrals Site may be included elsewhere within the Site and are incorporated into these Terms and Conditions by reference. The Content is protected by copyright under both United States and foreign laws. Title to the Content remains with Outcome Referrals or its licensors. Any use of the Content not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws. Content and features are subject to change or termination without notice in the editorial discretion of Outcome Referrals. All rights not expressly granted herein are reserved to Outcome Referrals and its licensors.

  3. Privacy of Personal Information. Outcome Referrals does not routinely collect or store any individually identifiable information and will never disclose any personally identifiable information unless ordered to by a court. If Outcome Referrals does receive personally identifiable information it will store this information in an encrypted format and minimize access to this information on a need-to-know basis. Outcome Referrals considers itself a Business Associate (as defined by HIPAA) of any licensed healthcare provider that is a registered user and holds itself to all related regulations as defined in the Health Insurance Portability and Accountability Act (HIPAA), 45 C.F.R. Parts 160 and 164, and any future amendments.

  4. Instructions. User agrees to follow all published regulations and manuals regarding the proper use of Outcome Referrals OMS including user manuals, on-line help and other materials and announcements which may be updated and amended by Outcome Referrals from time to time. Furthermore, you agree that you are not qualified to use Outcome Referrals OMS until you have read and are ready to comply with these instructions.

  5. Help and Support. Outcome Referrals may use a variety of methods (e.g., in-product, Internet, fax and phone) to provide technical support and customer service in connection with Outcome Referrals OMS. The terms and conditions governing the offering of this support, some of which require the payment of an additional fee, are subject to change as announced by Outcome Referrals from time to time.

  6. User ID and Password Security. The Signing User may, at his/her discretion, assign other Registered Users. The Signing User is responsible for training, educating and policing all other Registered Users within the Organization to abide by this Agreement. Outcome Referrals will assign each Registered User a unique Outcome Referrals OMS user ID and password which cannot be shared or disclosed to anyone else. Registered Users are the only person(s) authorized to use their user IDs and passwords and are responsible for maintaining the confidentiality of these user IDs and passwords. Registered Users shall not permit or allow other persons to have access to or use their user IDs and passwords, except if you choose to provide that information to Outcome Referrals’s authorized technical support personnel for assistance. The Organization, Signing User, and each Registered User are responsible for ensuring that the correct individual uses each Registered User’s user ID and that it is not shared or used by others. Outcome Referrals will not disclose your password if you lose or forget it. You agree to take reasonable steps so that no unauthorized person shall have access to your Outcome Referrals OMS passwords or accounts. You must promptly notify your system administrator and Outcome Referrals if you are aware of an unauthorized person having access to your password so that Outcome Referrals can de-activate or reset the password. Certain portions of the Outcome Referrals web site are designed for authorized healthcare professionals only.

  7. Electronic Communication. When you visit or send e-mails to us you are communicating with us electronically. By communicating with us via e-mail, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on WellnessCheck. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing and/or that they be sent to the recipient's last known address. In addition, you certify that you have taken all reasonable precautions to secure any patient-level reports sent to you electronically.

  8. Ownership and Reservation of Rights. As a Registered User, Outcome Referrals agrees to make best efforts to protect any data that is reasonably identifiable as defined by HIPAA and other applicable laws. In addition, Outcome Referrals agrees to make best efforts not to disclose OMS Data to any party without the individual patient's authorization. If a Registered User requests OMS Data be transferred to another Registered User, the originating Registered User accepts full responsibility for requesting and documenting the patient's authorization and will make said documentation available to Outcome Referrals upon request. This provision survives termination of this Agreement.

  9. Outcome Referrals reserves all rights not expressly granted to you in this Agreement. Outcome Referrals OMS is protected by copyright, trade secret and other intellectual property laws. Outcome Referrals owns the title, copyright, and other intellectual property rights in Outcome Referrals OMS. Outcome Referrals OMS is licensed, not sold. This Agreement does not grant you any rights to trademarks or service marks of Outcome Referrals. This Agreement confers no title or ownership in Outcome Referrals OMS and is not a sale of any rights in Outcome Referrals OMS. All ownership rights remain in Outcome Referrals or its third party suppliers, as the case may be.

  10. Outcome ReferralsServices and Advice. Sometimes Outcome Referrals OMS provides advice and suggested considerations based on aggregate samples from databases and published research. User understands that this advice is only based on aggregate samples and that there is only a probability that this advice should be considered. However, as in all healthcare decision making, it is the responsibility of a qualified and licensed healthcare provider to weigh all the facts before him/her and make a sound professional decision. User also acknowledges that this advice and considerations may become outdated with new research even though Outcome Referrals makes reasonable efforts to keep this advice up to date.

  11. Outcome Referrals Is Not Engaged in the Practice of Medicine. Outcome Referrals is not licensed to practice medicine and Outcome Referrals shall not be deemed to be engaged in the practice of medicine as a consequence of providing the Outcome Referrals OMS. Outcome Referrals expressly disclaims any and all responsibility for any consequences related, directly or indirectly, to any use, misuse, or interpretation of the Outcome Referrals OMS or any other information provided or omitted in connection with the Outcome Referrals OMS.

  12. User is Responsible for Proper Use. Outcome Referrals does not represent or warrant that the Outcome Referrals OMS will perform as expected or be error-free. The user of the Outcome Referrals OMS assumes full responsibility for the appropriate use of the medical and other information contained in Outcome Referrals OMS. Further, Outcome Referrals is not responsible for the actions of any other party who uses the Outcome Referrals OMS. Outcome Referrals intends for the Outcome Referrals OMS to be available 24 hours per day, 7 days per week. However, Outcome Referrals WILL NOT BE LIABLE FOR DAMAGES OR REFUNDS SHOULD THE SITE BECOME UNAVAILABLE TEMPORARILY OR ACCESS TO A SITE BECOMES SLOW OR INCOMPLETE due to system back-up procedures, Internet traffic volume, upgrades, overload of requests to the servers, general network failures or delays, or any other cause which may from time to time make Outcome Referrals OMS inaccessible to subscribers. Outcome Referrals will make reasonable efforts to notify subscribers of any unusually extended interruptions and will attempt to restore access to sites as soon as possible.

  13. Outcome Referrals OMS is not a Substitute for Professional Medical Advice. The information contained in Outcome Referrals OMS is only for informational or research purposes as an educational component to the care provided by doctors and other health care professionals. You should not assume that information on a particular topic is complete. While the information provided in Outcome Referrals OMS is updated from time to time, healthcare information changes rapidly and consequently some information on the Outcome Referrals OMS may be out of date. Additionally, no assurance can be given to you that the information supplied covers all relevant matters for each person and Outcome Referrals makes no assurances as to whether the information reflects the best medical information for any particular circumstances. No one should rely solely on information contained in the Outcome Referrals OMS in rendering a diagnosis or considering a course of treatment.

  14. Payment. You agree to be bound by the payment and service options that you have selected, or will select, including potential shipping and fax charges, interest charges (1.5% per month) for unpaid balances, and collection and early termination fees. If a health plan or other organization covers all or some portion of user fees, this will be reflected as deductions or credits in User invoices. Unless otherwise agreed, payment for services is due upon or before the rendering of services. User will be considered delinquent if payment is not received within thirty days and interest charges will accrue. User will be considered in default if payment is not received within 60 days, and User agrees to pay attorney’s fees and collection agency costs associated with collecting delinquent accounts. User acknowledges that there are no refunds for services purchased unless they are specifically referenced in the payment option. If you have not selected a specific payment option for a given service, you agree to pay the standard Outcome Referrals fees that are current at the time of product use.

  15. Disclaimer of Warranties. Except as expressly provided above, Outcome Referrals OMS are provided "as-is" and, to the maximum extent permitted by applicable law, Outcome Referrals, its affiliates, licensors, third-party content or service providers, distributors, dealers and suppliers (collectively, "representatives") disclaim all warranties, express or implied, regarding Outcome Referrals OMS, including any warranty of fitness for a particular purpose, title, merchantability, and non-infringement. Outcome Referrals does not warrant that Outcome Referrals OMS or the services are secure, free from bugs, viruses, interruption, errors, or other program limitations. Some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. In that event, any implied warranties are limited in duration to 60 days from the date of purchase of Outcome Referrals OMS, as applicable. However, some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you may have other rights that vary from state to state

  16. Limitation of Liability and Damages. You agree not to hold Outcome Referrals liable for any loss or damage incurred as a result of your participation in the Outcome Referrals OMS. Additionally, your exclusive remedy and the entire liability of Outcome Referrals and its representatives for any reason shall be limited to the amount paid by you for Outcome Referrals OMS, as applicable, to Outcome Referrals. To the maximum extent permitted by applicable law, Outcome Referrals and its representatives are not liable for any indirect, special, incidental, or consequential damages (including damages relating to loss of business, telecommunication failures, loss, corruption, security or theft of data, loss of profits or investment, healthcare decisions taken by you or providers whether based on breach of contract, breach of warranty, tort (including negligence), strict liability, product liability or otherwise, even if Outcome Referrals or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. In no event does Outcome Referrals assume any liability to any party other than you arising out of your use or inability to use Outcome Referrals OMS. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Outcome Referrals and you. Outcome Referrals would not be able to have provided Outcome Referrals OMS without such limitations.

  17. Indemnification.You agree to indemnify, defend and hold harmless Outcome Referrals and any associated health plans and the officers, directors, employees and agents of the same (each, an "Indemnified Party") from all losses, costs, damages, claims and other expenses (including reasonable attorneys' fees) arising out of any claim by any third party in connection with use by You or any of your Affiliates of any of the Outcome Referrals OMS, including, without limitation, claims asserting that you misused Outcome Referrals OMS in another jurisdiction or country where its use might infringe the patent, copyright, trade secret or other intellectual property anywhere in the world of such third party (each, a "Claim").

  18. Governing Law. This Agreement will be governed by the substantive laws of the Commonwealth of Massachusetts, conflicts of law excluded, as applied to agreements entered into and to be performed entirely within Massachusetts, without regard to its choice of law or conflicts of law principles, and applicable federal law.

  19. Disputes. You agree that any dispute, controversy, or claim arising out of or related to this Agreement or your use of Outcome Referrals OMS will be resolved and settled through binding arbitration and conducted in Boston, Massachusetts, United States of America. The parties will work cooperatively to select a mutually acceptable JAMS arbitrator and follow the current JAMS rules including the payment of arbitration costs and fees. If the parties cannot agree on the selection of an arbitrator, each party will select an arbitrator who will conjointly select a third arbitrator to hear the case. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, if you have in any manner violated or threatened to violate Outcome Referrals’s intellectual property rights, Outcome Referrals may seek injunctive or other appropriate relief in any state or federal court, and you consent to exclusive jurisdiction and venue in such courts.

  20. Term and Termination. This Agreement may be terminated by Outcome Referrals immediately and without notice if you fail to comply with any term or condition of this Agreement. Upon such termination, you must immediately cease using Outcome Referrals OMS. Outcome Referrals shall have the right to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of Outcome Referrals OMS (including but not limited to internet based services, pricing, technical support options, and other product-related policies) upon notice by any means Outcome Referrals determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in Outcome Referrals OMS on any Outcome Referrals sponsored web site, including but not limited to the web site listed above. Any use of Outcome Referrals OMS by you after Outcome Referrals's publication of any such changes shall constitute your acceptance of this Agreement as modified. The term of this agreement shall be for one full year, after which this agreement shall automatically renew for successive one-year terms unless and until written notice of termination is provided by either party to the other at least thirty (30) days prior to termination.

  21. Export Regulations. Outcome Referrals OMS, including any technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Outcome Referrals OMS.

  22. Entire Agreement. Unless a written modification or extension to this agreement is signed by the parties, the parties acknowledge that this is the full agreement and that any other communications or commitments are void.

  23. Miscellaneous. This Agreement and any applicable attachments are a complete statement of the agreement between you and Outcome Referrals, and replaces all previous agreements, and sets forth the entire liability of Outcome Referrals and its Representatives and your exclusive remedy with respect to Outcome Referrals OMS and their use. The agents, employees, distributors, and dealers of Outcome Referrals OMS are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Outcome Referrals. Any waiver of the terms herein by Outcome Referrals must be in writing signed by an authorized officer of Outcome Referrals and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.

Revised July, 2012

Outcome Referrals, Inc.

1 Speen Street, Suite 130

Framingham, MA 01701

451537.3