App Terms of Service

Terms of Service

Original Version: April 5, 2019

Last Updated: May 17, 2019

Introduction

These Terms of Use (“Terms”) govern your right to access and use THEM Patient-Dashboard (“The App”) and broader Technology. The term “you” in these Terms refers to the end-user accessing The App and using the Technology. If you are using The App and Technology on behalf of an employer or other business entity, the term “you” also refers to that employer or business entity. These terms are in place to govern the interaction between you and us, The Health Exchange Market, corp. a Tennessee corporation.

Background

We have developed a suite of proprietary software and a technology to connect all healthcare stakeholders (patients, clinicians, healthcare institutions, product manufacturers, etc.) through our existing THEM marketplace platform (the “Marketplace”). The App, Marketplace, and all digital services and offerings based on and derived from these are referred to collectively as the “Technology”.

To use our Technology, you must accept these Terms. We reserve the right to alter these Terms at our discretion. Updates and additions to the terms will be outlined clearly at the beginning of the updated document. When any change is made to the Terms, you will be immediately notified in one of the following ways:

  1. The next time you access the Technology
  2. By push notification on your mobile device (if enabled)
  3. Through email (if provided)

Continued use of the Technology after such changes is subject to your acceptance of the new Terms. These Terms are distinct from our Privacy Policy which specifically govern how your personal data is handled.

Account

To use our Technology, you must register through the THEM Patient-Portal (your “Account”) either through The App, or at https://thehealthexchangemarket.com/patient-portal. You are responsible for maintaining the confidentiality of your credentials. Please notify us immediately if you suspect unauthorized use of your password or account or any other breach of security at devs@thehealthexchangemarket.com.

Acceptance of these Terms

You represent that you are at least 18 years of age. You may not accept these Terms or therefore use the Technology, if you are barred from doing so under the laws of the United States and/or any
other country, including the country in which you reside or from which you use the Technology. If you accept these Terms on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these Terms. If you do not have the
authority to accept these Terms and bind your employer or other business entity, you may not accept
these Terms or use our Technology on behalf of your employer or other business entity.

 

We retain the right to reject or revoke your acceptance of these Terms, to cancel or terminate your account, and to suspend and/or terminate all rights to use and access the Technology, at our sole discretion, at any time, for any reason. In the event of account suspension or termination, you will be notified via email regarding the circumstances of the above stated action.

 

By agreeing to these Terms, you represent and warrant that all information which you provide in connection with your account or pursuant to the Technology is correct and current.

Technology

THEM Patient-Dashboard

THEM Patient-Dashboard grants you a limited, revocable, worldwide, royalty-free, non-assignable and nonexclusive license to access and use our Technology solely to access the features and functions offered through the Technology. We will use commercially reasonable efforts to provide the Technology, including support inquiries regarding integration of our Technology.


You acknowledge and agree that we, together with our third party licensors, own all legal right, title and
interest concerning our Technology, and all related intellectual property rights, including but not limited
to; any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all
other proprietary rights (“Intellectual Property”). You agree that we may cancel this license, or stop,
permanently or temporarily, providing the Technology or any features or service of such Technology at
any time, at our sole discretion, without prior notice to you and without liability to you and any other
person. Should such changes be made that alter the availability of the Technology to you, notification of such changes will be made via email or from within The App. Your right to access and use the Technology is subject to such reservation of rights. Your license is subject to United States export laws and regulations.

Dashboard

Our dashboard provides you access to certain data and reporting information with respect to the activity
conducted over The App and the Marketplace (“Dashboard”). All information contained on the Dashboard is confidential. The Data and information presented by the Technology is sourced from provider records, US Government sources, and yourself. As a result, we offer no representation or warranty as to the accuracy of this information. Resulting information is to be used as a guide only and is in no way meant to constitute medical advice or direction for treatment.

Confidentiality and Data

THEM will receive confidential information (“CI”) by your use of the Technology. THEM shall:

  1. Hold the CI in strict confidence
  2. Exercise the highest degree of care in safeguarding the CI against any and all loss, theft, or other inadvertent disclosure, and
  3. Take such steps as are necessary to ensure and maintain such confidentiality.

THEM shall not disclose, transfer, or in any way divulge – directly or indirectly – any CI, under any circumstances or by any means, to any third party without your prior consent. Consent opt-ins will be present throughout The App and Dashboard wherever applicable.


During your right to use the Technology, you will grant THEM the right to access your health care data. Additionally, you may provide supplemental data through the connection of outside services such as lifestyle, wearable device, health charts, and DNA data. Supplemental data from third-party services may have their own Terms separate from those listed here.


THEM Patient-Dashboard agrees to treat data provided by you as your Confidential Information (“CI”) pursuant to these Terms and in accordance with all applicable laws, regulations and industry best practices, as well as each party’s applicable privacy policy. Notwithstanding the above, you grant to THEM Patient-Dashboard the right to use the data obtained pursuant to providing the Technology to publish anonymized and aggregated statistics (“Anonymized Statistics”) for the purposes of optimizing App performance and other data analytics, and for industry analysis, demographic profiling, market research and other similar purposes, and for general improvement of our business and Technology.


THEM Patient-Dashboard allows you to sell certain portions of your de-identified data (“Monetize”) in aggregate with other members’ data to research data buyers. You will be compensated for Monetized data based on price terms to be disclosed to you from time to time. You may also include your consent to donate (“Gift”) your data either to specific organizations or for a specific cause (e.g. Cancer research, Healthcare affordability). We will not make your data available, for monetization, gifting, or otherwise without your express consent. Some exclusions apply, see the “Data Storage” and “Monetization Exclusion” sections for more information.

Data Storage

Data uploaded to The Dashboard is organized based on type of data, where and how it was obtained – including limitations placed on data uploaded through third-party apps and services – and falls into two categories:

 

  1. “Online Data” is health data stored in a database accessible online through our API and – with your consent – is eligible for features including Monetization, third-party analytics and insights, and Direct-to-Clinician sharing. Most of your connected medical records, genomics, lifestyle, nutrition, and other clinically-relevant health data falls into this category. If you have given consent for Online Data services such as Monetization, eligible data will automatically be assigned to this database.
  2. “Local Data” is stored in a database accessible only to you. This category is not accessible through our API and is comprised of data uploaded to The Dashboard for utility and organization purposes including, but not limited to, receipts and bills, prescription reminders, as well as any data obtained through third-party apps and services which prohibit “Online” features in their Terms of Service. You will be notified when connecting data to The Dashboard if it is being stored as Local Data. If you have not given or revoked consent for Online Data services such as Monetization, all data will be assigned to this database.

Monetization Exclusion

Some data obtained from third-parties, such as CMS Blue Button, is eligible for some Online Data features, but is not eligible for Monetization. You will be notified when connecting these services to The App which, if any, Online Data features can be used in conjunction with these connected data sets.

Right to be Forgotten

Within sixty (60) days of THEM Patient-Dashboard’s receipt of your or your estate’s request to have your profile and data removed, THEM Patient-Dashboard will remove all data in your profile and all data records exclusively specific to you. If you have, are, or will be compensated for the use of your data in a transaction already completed prior to THEM Patient-Dashboard’s removal of your data, the buyer will be entitled to use your data for the specific purpose and terms as defined in the transaction.

Compensation

You may receive compensation from the sale of your data. In the event your annual compensation in any calendar year exceeds five hundred dollars ($500.00) you will be required to provide THEM Patient-Dashboard a form W-9, and you will receive a form 1099 non-employee compensation.  Failure on your part to provide a W-9 will prevent THEM Patient-Dashboard from payment to you in excess of four hundred ninety-nine dollars ($499.00). If you fail to provide a W-9, and THEM Patient-Dashboard has sold your data, the excess amount will be a THEM Patient-Dashboard donation to The Lovebird Foundation.

Survival of Compensation

Your estate may receive compensation from the sale of your data subsequent to your death. THEM Patient-Dashboard will pay your data sale compensation for up to ten (10) years following your date of death. In the event your estates annual compensation in any calendar year exceeds five hundred dollars ($500.00) your estate will be required to provide THEM Patient-Dashboard a form W-9, and your estate will receive a form 1099 non-employee compensation.  Failure on your estate’s part to provide a W-9, will prevent THEM Patient-Dashboard from payment to your estate in excess of four hundred ninety-nine dollars ($499.00). If your estate fails to provide a W-9, and THEM Patient-Dashboard has sold your data, the excess amount will be a THEM Blue Button donation to The Lovebird Foundation.

Notice of Future Compensation Models

We are currently developing a new compensation model based on and transacted through THEM’s healthcare exclusive blockchain (the “Blockchain”). Compensation may be provided instead in the form of a proprietary digital currency (“Tokens”), hosted on the Blockchain. Tokens will only be redeemable for health care related services, products, and expenses through organizations who have agreed to accept Tokens as payment (e.g. pharmacies, physician’s offices, hospitals). A list of all participating organizations (our “Member Network”) will be available within The App and Dashboard. Tokens are transferable only within the Blockchain system. Tokens do not constitute shares or securities of any type, nor do they entitle you to any ownership or interest in THEM Patient-Dashboard. They are solely intended as a means by which you can monetize and gift data and receive discounts within our Member Network (which is continuously being developed) and to facilitate growth and transparency within the healthcare system.

Term and Termination

You may discontinue using the Technology at any time. Likewise, we may at any time and for any
reason, terminate your license and your right to access the Dashboard. Upon termination of your Account, we will immediately cease collecting your data. All provisions in these Terms that are intended to survive such termination, including the terms relating to reservation of intellectual property rights, confidentiality obligations, disclaimers, limitation of liability, indemnification and general legal provisions shall survive and remain binding.

Disclaimer of Warranties

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF OUR TECHNOLOGY IS AT YOUR SOLE
RISK AND THAT OUR TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF
ANY KIND FROM THEM. YOUR USE OF OUR TECHNOLOGY AND ANY MATERIAL DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF OUR TECHNOLOGY IS AT YOUR OWN DISCRETION AND
RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEMS,
HARDWARE, FIRMWARE, SOFTWARE, OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH
USE. THEM WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE
INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED
ACCESS TO, USE OF, OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR
APPLICATION OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. WE FURTHER
EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES
ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE
ANY ASPECT OF THE SDK OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR
OPERATION OF THE TECHNOLOGY, AT ANY TIME. THEM ALSO DOES NOT WARRANT THAT ANY OF
OUR TECHNOLOGY WILL MEET YOUR REQUIREMENTS AND EXPECTATIONS OR THAT YOU WILL ACHIEVE
ANY PARTICULAR RESULT FROM USING ANY TECHNOLOGY. WE DO NOT GUARANTEE ANY OUTPUT OR
RESULTS OF PERFORMANCE OR USAGE OF ANY SERVICES OR APPLICATIONS NOR THAT ACCESS OR
SERVICES TO OUR TECHNOLOGY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT
THEM, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO
YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF
DATA, LOST REVENUES OR LOST PROFITS, WHETHER OR NOT THEM PATIENT-DASHBOARD OR ITS
REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY
SUCH LOSSES ARISING. OTHER THAN ANY REVENUE SHARE THAT MAY BE PAYABLE TO YOU PURSUANT
TO THESE TERMS OR ANOTHER APPLICABLE WRITTEN AGREEMENT WITH THEM PATIENT-DASHBOARD, IN NO EVENT SHALL THEM PATIENT-DASHBOARD’S LIABILITY TO YOU OR ANY OTHER PERSON EXCEED $50.00 IN THE AGGREGATE, WHETHER FOR ONE OR MORE CLAIMS.

Indemnification

To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless THEM Patient-Dashboard, its affiliates and partners and licensors, their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or accruing from, but not limited to:

  1. Your use of the Technology,
  2. Any damage of harm to person or property arising from your application, including claims for any loyalty program points, rewards, virtual currency or other benefits promised to or claimed
    by any end-user of any application, or any partner, advertiser, publisher or other person
    providing services or products with respect to any of your applications, and
  3. Any noncompliance by you with these Terms.

Miscellaneous

These Terms constitute the entire legal agreement between you and THEM Patient-Dashboard and governs your use of the matters described in these Terms, excluding any services that THEM Patient-Dashboard may provide to you under a separate written agreement, and replaces or supersedes any prior or contemporaneous understandings, representations, discussions or understandings between you and THEM Patient-Dashboard relating to the matters described in these Terms. The relationship between you and THEM Patient-Dashboard is that of independent contractors. These Terms do not create or imply any partnership, agency, or joint venture. You agree that if THEM Patient-Dashboard does not exercise or enforce any legal right or remedy which is contained in these Terms, or which THEM Patient-Dashboard has the benefit of under any applicable law, this will not be taken to be a formal waiver of THEM Patient-Dashboard’s rights and that those rights or remedies will still be available to THEM Patient-Dashboard. If any court of law, having jurisdiction to decide on such matter, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of these Terms. The remaining provisions of these Terms will continue to be valid and enforceable. You may not assign or transfer any of the rights in these Terms. Any such assignment or transfer is void. Other than with respect to rights to indemnification provided above, these Terms do not create any third-party beneficiary rights. These Terms, and your relationship with THEM Patient-Dashboard under these Terms, is governed by the laws of the State of Tennessee without regard to its conflict of laws provisions. You and THEM Patient-Dashboard acknowledge and agree to submit to the exclusive jurisdiction of the courts located within Davidson county of the state of Tennessee to resolve any legal matter arising from these Terms. Both parties waive any right to a trial by jury.