Tom™ Primary Care as-a-Service™ (PCaaS) Disclosures​

BEFORE YOU USE THE PCaaS SERVICE CAREFULLY READ ALL THE FOLLOWING TERMS AND CONDITIONS. BY USING PCaaS, YOU AGREE TO BE BOUND BY, AND TO BECOME A PARTY TO, THIS AGREEMENT.  

This End User License Agreement (the “Agreement” or the “EULA”) is a legal agreement between You (as defined below) and Lumeris Solutions Company, LLC, as well as its parent, subsidiary, and commonly held affiliate companies (together, the “Company”) relating to and governing Your access to and use of the PCaaS ^TM (a/k/a Primary Care as a Service ^TM or Tom ^TM) system and services (collectively, the “Service”). For purposes of this Agreement, “You” and “Your” shall mean either the individual person or the legal entity that is accessing or using the Service. Where the Service is accessed by one who is acting on behalf of another due to medical incapacity or other reason granting such person the authority to so act, in such instance “You” and “Your” shall refer and this Agreement shall apply collectively to both the actor and the one benefiting from suc0h actions. As detailed below, You acknowledge some provisions of this Agreement shall additionally apply to Your relationship with Your Provider/Health Plan (as defined hereafter), but only to the extent such terms are not barred or governed by applicable law or regulation or superseded by a seperate agreement.

Company may at any time and at its sole discretion update and revise this Agreement. When this Agreement is so amended, You may receive an SMS through the Service with a link to the updated Agreement. You must agree to the terms and conditions of every update in order to continue to use the Service. Continued use of the Service shall constitute your assent to the updated Agreement. You are permitted to print out a copy of this Agreement for your records. Company will accept no changes or revisions from You with respect to this Agreement.

Limited License. The Service is provided to You for use pursuant to this Agreement. Conditioned upon, and subject to, Your compliance with the terms and conditions of this Agreement, Company hereby grants You the non-exclusive, non-transferable, limited right and license in the United States to access and use the Service. This license is granted to You solely in conjunction with Your affiliation with a health care provider or health insurance plan (“Provider” and/or “Health Plan”, as the case may be) that has contracted with Company to provide the Service to its patients or members. Company has entered into one or more agreements with Your Provider/Health Plan that include the provision of the Service to You. This license will be automatically revoked, without any requirement of notice by Company to You, immediately upon termination of Your relationship with the Provider/Health Plan. Access to and use of the Service is subject to your continued affiliation with the Provider/Health Plan.

Consent. By providing Your mobile telephone number to Your Provider/Health Plan and/or accessing the Service, You represent that You do now provide consent and/or have provided consent to the Provider/Health Plan to provide Your mobile telephone number to the Company thereby authorizing the Company to contact You through and provide You with use of the Service. Such contact may be via text messaging, automated phone calls, and/or live phone calls and You consent to all of the foregoing. You additionally consent to the Provider/Health Plan to continuously contact You through the Service until Your access to the Service is terminated as detailed elsewhere herein, or until You revoke this consent by contacting Provider/Health Plan and notifying Provider/Health Plan of such revocation. You also expressly agree and understand that there may be some time delay between your notice of revocation to the Provider/Health Plan and the termination of all contact to You through the Service. You agree that provision of a mobile telephone number and, when applicable, completion of confirmation steps through that number, (“Your Login Information”) is Your signature and authorization for Company to allow You to access the Service. You are solely responsible for all activity with the Service occurring under Your Login Information. The consent You grant herein expressly authorizes the Company, the Provider/Health Plan, or both to contact You via short message service text messaging (“SMS”) on any mobile telephone number that You provided or was provided to Company by Your Provider/Health Plan. You understand that use of the Service may incur charges from your mobile provider pursuant to their standard data and/or messaging rates.

Opt Out. In order to opt out of this Agreement and discontinue Your use of and access to the Service, text the word STOP as an SMS message, after which time You may receive a confirmation message. This Agreement shall survive termination of the Service after You have opted out. In order to re-enroll in the Service, You may text he word START via SMS message. For assistance re-enrolling, Your Provider/Health Plan may be able to provide the phone number for sending the START message. Additionally, you may text HELP while still enrolled in the Service for help with other commands.

Use of Personal Information. You agree that You are responsible for providing current, accurate, and complete information regarding Yourself to the Company, Provider/Health Plan, and/or through Your use of the Service. Company will not sell, exchange, or release the personally-identifiable information, including specifically medical information such as PHI, submitted by You to Company through the Service or provided by the Provider/Health Plan to the Company for use in the Service (all “Personal Information”) to anyone except the Provider/Health Plan and any Company Business Partners as necessary to operate the Service, provide support or maintenance services, or provide other associated services, unless reasonably necessary to comply with legal or regulatory process, to enforce this Agreement, or to protect the rights of Company, the Provider/Health Plan, users of the Service, or others. However, Company may collect, compile, and utilize certain aggregate statistical information about You and Your usage of the Service for marketing and other purposes. Company and/or Provider/Health Plan may contact You regarding account status and other matters relevant to the underlying Service and/or the information collected. Company may also use Your Personal Information for the purpose of improving the operation of the Service. Personal Information may also include imagery, including medical images (such as x-ray, CT scan, MRI, etc.) or images of Yourself that You take and send via the Service. For the sake of clarity, Company will at all times use Your Personal Information in compliance with all agreements with your Provider/Health Plan as well as all statutes and regulations, including specifically the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

For purposes of this Agreement, “Business Partners” means any of Company’s service providers, suppliers, vendors, business partners, and their respective employees, distributors, contractors, and agents, and does not include Provider/Health Plan.

Unsecure Methods of Communication. You understand and acknowledge that SMS and other forms of telephone text messaging are inherently unsecure methods of communication. You understand that content sent to you as a part of the Service and any content you send through the Servicemay be intercepted by unauthorized third parties, and with this informed understanding you nonetheless expressly agree to the exchange of such content and the full terms of this EULA. As expressly disclaimed later herein, there is no warranty made whatsoever that the Service shall be secure, which includes potential exposure of any content exchanged with You as a part of the Service. Based on the foregoing, You understand and agree that submitting content to the Service is completely voluntary and that You are solely resposible for the content You send or submit from Your mobile telephone to the Service. TO THE EXTENT A CLAIM ARISES BASED UPON UNAUTHORIZED THIRD-PARTY DISCLOSURE OR OTHER ACCESS OF ANY CONTENT SENT BY OR TO YOU IN THE SYSTEM, YOU HEREBY RELEASE AND HOLD HARMLESS COMPANY AND PROVIDER/HEALTH PLAN FROM AND AGAINST ANY SUCH CLAIMS. 

Artificial Intelligence and Provider Professional Judgement. Company may use Artificial Intelligence as a part of the Service, including, for example, using Your health data to make recommendations to your Provider. Further, your use of automated elements of the Service may include Artificial Intelligence-informed communications. You acknowledge and understand that all AI-supported technology, like all other software, is subject to the same limitations and risks as other software-based technologies. Company employs an AI governance framework to comply with all applicable regulations, maintain high ethical standards, provide transparency to product and clinical staff, mitigate discrimination and bias, provide ongoing monitoring and assessment of all AI-supported features and functions, and provide resilience and security. The Services are not intended as a substitute for professional medical judgment and Your Provider is at all times responsible for any care decisions. Artificial Intelligence is one of many tools at Your Provider/Health Plan’s disposal and never makes any treatment decisions as a part of the Service.

Medical Device Data. Your Provider/Health Plan and/or the Company may have provided to You one or more medical devices or other personal data-gathering apparatus (such as, for example, a scale, blood pressure cuff, heart rate monitor, etc.) which collect your health data (“Device Data”). Such Device Data may be shared with the Company, which may in turn be used as a part of the Service, including specifically communications directly related to such Device Data. By using the Service, You hereby authorize Your Provider/Health Plan to share and Company to accept and use all such Device Data in connection with the Service. All Device Data shall be considered Personal Information.

Health Plan Grievances, Coverage Requests, or Appeals. The Service is NOT a proper mechanism for initiating, or communicating regarding, any of (1) a grievance against any health care provider or other medical staff, or anyone involved in health care decisions related to Your care, (2) a request for medical coverage of any service, device, or other treatment option by Your health insurance company, or (3) an appeal of any medical or coverage decision by your health insurance company. Company cannot be responsible for and expressly disclaims any responsibility or liability for You attempting to use the Service to submit or communicate regadring any grievance or appeal, complaint, dispute, or other medical coverage-related issue through the Service. For any such matters, You must use the appropriate channels proscribed by your health plan and/or health care provider. For any  grievance, coverage request, or appeal of coverage for which there is a deadline to initiate such action, any attempt by You to initiate such action via the Service shall NOT meet such deadline, and Your reliance on such attempt may cause You to miss the opportunity to properly seek resolution of your issue(s).

Change of Personal Information. The Service is NOT a proper mechanism to change any personal information, including medical coverage information, with your Provider/Health Plan. If You need to notify Your Provider/Health Planof a change in personal information, such as change of address, phone number, medical coverage, etc., You must contact your Provider/Health Plan directly in the manner such Provider/Health Plan prefers. Company cannot be responsible for and expressly disclaims and responsibility or liability for You attempting to use the Service to change any personal information with any Provider/Health Plan.

User Conduct. You shall not access or use the Service in any unlawful manner or for any unlawful purpose or in violation of these terms and conditions or applicable laws, rules and regulations. You agree that You will only access and use the Service solely for medical provider or health plan communication purposes, consistent with this Agreement. Company shall have the right, in its reasonable discretion, to suspend immediately the Service if Company determines that such action is necessary to prevent a security or confidentiality breach, or to prevent damage or misuse of the Service. Without limiting the foregoing, You shall not use the Service to take any of the following actions:

1. defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others;
2. transmit, publish, post, upload, e-mail, distribute, or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
3. Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, any software or hardware, the Site, other websites of Company, or telecommunications equipment;
4. advertise or offer to sell any goods or services for any commercial purpose without Company’s written consent to do so;
5. Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, chain letters or other unsolicited messages;
6. download any file that You know or reasonably should know is not normally legally obtained in such manner;
7. falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of the Service;
8. interfere with or disrupt Company’s sites, servers, or networks;
9. probe, scan or test the vulnerability of the Site or circumvent any security mechanism used by the Site;
10. impersonate any person or entity, including, but not limited to, any employee, agent, or vendor of Company, or falsely state or otherwise misrepresent such party’s affiliation with a person or entity;
11. forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through the Service or to manipulate Your presence on a Site;
12. take any action that imposes an unreasonably or disproportionately large load on Company’s infrastructure;
13. engage in any illegal activities; or
14. collect, store or Transmit personal information (including but not limited to PHI) about individuals or any information in violation of applicable Laws.

Except as is reasonably necessary and in conjunction with providing communication through the Service, You will not permit any other individuals to use Your Login Information or access or use the Service through Your Login Information. You agree not to (a) reproduce, duplicate, copy, sell, trade, or resell any portion of, documentation related to, or details of the Service (including Log-In Information), or (b) create derivative works based on the Service or any other information disclosed to You in the course of being provided the Service.

Third Party Content, Links, and Software. The Service may include functionality operated by third-party software (“Third-Party Software”). Your access to and use of any Third-Party Software may also be governed by the terms, conditions, disclaimers, and notices associated with such Third-Party Software. Company and its Business Partners may at any time, for any reason, modify or discontinue the use or interoperability of any Third-Party Software, with or without notice to You. You understand that such changes with respect to Third-Party Software may impact ongoing performance of the Service, including potentially interruptions in the functionality of the Service. Additionally, third-party content (“Third-Party Content”) is included in the Service, which may be subject to passthrough terms, provided when applicable at the end of this EULA. All such terms are a part of this EULA and You agree to abide by any such terms.

Risks. Company acts solely as an operator of the Service and does not warrant that the use or operation of the Service will be uninterrupted or error-free. Use of the Service and any reliance thereupon, including any action taken or not taken by You or any other person because of such use or reliance, is at Your sole risk. Without limiting the foregoing, You agree that Company is not responsible for the accuracy of any information relayed by or to Provider/Health Plan via the Service, including healthcare data accessed through the Service, and it is Your responsibility to confirm the accuracy of such information.

Indemnification. You agree to indemnify, defend and hold harmless Company, as well as the Provider/Health Plan when applicable, from and against all damages, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and disbursements, asserted against, directly resulting to, imposed upon or directly incurred by Company and/or Provider/Health Plan by reason of or resulting from any of the following: (a) Your breach of this Agreement; (b) Your negligence, willful misconduct or violation of law; and (c) Your use of the Services for any purpose other than the purpose for which they were intended.

No Support Obligations. Except as set forth in any separate agreement between Company and Provider/Health Plan, Company shall not have any obligation under this Agreement to provide any updates, corrections, changes, enhancements, or modifications to the Service (collectively, “Updates”) or to otherwise correct any errors or defects in the Service. However, if any Updates are provided by Company to You, the terms and conditions of this Agreement shall govern such Updates unless such Updates are accompanied by a separate end user license agreement.

LIMITATIONS ON LIABILITY. COMPANY AND ITS BUSINESS PARTNERS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USE OF OR INABILITY TO USE THE SERVICES. IN NO EVENT SHALL COMPANY OR ANY OF ITS BUSINESS PARTNERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, RELIANCE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF PREVIOUSLY INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT COMPANY OR ANY OF ITS BUSINESS PARTNERS IS NEVERTHELESS FOUND LIABLE FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF COMPANY OR ANY BUSINESS PARTNERS WILL BE LIMITED TO THE PRO RATA AMOUNT PAID TO COMPANY BY PROVIDER/HEALTH PLAN FOR YOUR USE OF THE SERVICE DURING THE TWELVE MONTH PERIOD PRECEDING THE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. TO THE EXTENT NOT BARRED OR OTHERWISE GOVERNED IN ANY WAY BY APPLICABLE LAW(S) AND/OR A SUPERSEDING AGREEMENT OR RELATIONSHIP BETWEEN YOU AND PROVIDER/HEALTH PLAN, THE FOREGOING LIMITATIONS OF LIABILITY SHALL ALSO APPLY TO PROVIDER/HEALTH PLAN.

Ownership. The Service, all documentation and related thereto, and the Company and any Business Partners’ names and logos and all related product and service names, design marks and slogans are the property of Company, its affiliates or Business Partners. Other product names and service marks, etc., including those of Provider/Health Plan, are the property of their respective owners. You are not authorized to use any of these marks. Use of the Service confers no title or ownership in the Service, documentation related thereto, or the marks. References to any names, marks, products or services of third parties or hypertext links to third party site or information do not necessarily constitute or imply Company’s or its Business Partners’ endorsement, sponsorship or recommendation of the third party, information, product or service. You acknowledge that Company owns or has licensed all copyrights and associated intellectual property rights in the Service and all documentation and information related thereto. You will not, and will not permit anybody to, copy, modify, translate, reverse engineer, decompile, disassemble or create derivative works of any software, the Site, or and documentation or information related thereto which is licensed to You by the Company or its Business Partners in connection with the Service.

Export Controls. The Service and any documentation or information related thereto are provided by Company in the United States for access and use in the United States only. Those who access the Service do so on their own initiative and at their own risk, and are responsible for compliance with their local laws, if and to the extent such local laws are applicable. Use of the Service is subject to applicable United States export controls. None of the Service or underlying information or technology may be downloaded or otherwise exported or re-exported outside of the United States.

No Third-Party Beneficiaries. You and Company agree that You do not intend any third party beneficiaries to this Agreement, except that, notwithstanding the foregoing, or anything contained herein, You agree that the Provider/Health Plan and any Business Partners providing additional services (without separate agreement with You) are intended third party beneficiaries with respect to Your acknowledgements, obligations, representations and warranties set forth in this Agreement.

General Terms. This Agreement constitutes the entire agreement among You and Company with reference to use of the Service and supersedes any prior agreement between or among the parties regarding its subject matter. Notwithstanding the foregoing, this Agreement does not supersede any licensing or business associate agreement between Company and the Provider/Health Plan, or any superseding agreement or other relationship between You and Provider/Health Plan. This Agreement is governed by the laws of the State of Missouri without regard to its conflict of law provisions. The state and federal courts of St. Louis County, Missouri shall have exclusive jurisdiction over all disputes relating to this Agreement. The remedies at law of any party in the event of default or impending default by any other party in the performance of any terms of this Agreement may not be adequate, and such terms of this Agreement may be specifically enforced by a decree for specific performance, injunction or other appropriate equitable relief without the posting of any bond. You may not assign, transfer or delegate this Agreement or any part of it without Company’s prior written consent. Company may freely transfer, assign or delegate all or any portion of this Agreement, and any rights and duties hereunder. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of any heirs, successors and permitted assignees of the parties. In the event any provision of this Agreement is found to be unenforceable or invalid, such provision shall be modified so as to make it valid and enforceable and as so modified the entire Agreement shall remain in full force and effect.

Termination of Agreement. Company may terminate this Agreement, as well as Your access to and use of the Service, immediately, with or without notice, if (i) You breach, appear likely to breach, or threaten to breach any of the provisions of this Agreement, or (ii) You are no longer affiliated with the Provider/Health Plan. Upon any such termination or expiration, You must immediately discontinue all use of the Service and immediately destroy all copies of any documentation or information related to the Service. The provisions of this Agreement (other than Your right to use the Service and related information and documentation) shall survive termination of access to the Service. Additionally, this Agreement may be unilaterally be terminated by Company without notice to you in the event Your Provider/Health Plan is no longer in a relationship with Company for the provision of the Services.

DISCLAIMER OF WARRANTIES. THE SERVICE AND ANY DOCUMENTATION OR INFORMATION RELATED THERETO ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, EXCEPT AND SOLELY TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY PROHIBITED. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

1. COMPANY MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE, UP TO DATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET THE EXPECTATIONS OF YOU, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
2. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.