Health Gorilla™ Clinical Network™ End User License Agreement and Terms of Use
IMPORTANT, PLEASE READ CAREFULLY: This Health Gorilla™ Clinical Network™ Terms of Use (the "Agreement") is a legal agreement between you (hereinafter referred to as "User") and Health Gorilla and its subsidiaries (hereinafter referred to as "Health Gorilla") for your use of the Health Gorilla Clinical Network product. By clicking the "I ACCEPT" button, User agrees to be bound by the terms of this Agreement. If you have questions about the contents of this Agreement, please contact Health Gorilla support at support@healthgorilla.com.
As used in this Agreement, the term "User" includes the ordering physician, any designees/employees of the ordering physician whom the ordering physician has authorized to access Health Gorilla Clinical Network to view and order tests, transmit and/or receive results from laboratory, radiology and other participating providers, collectively known as "Providers" or otherwise facilitate laboratory, radiology and other related services collectively known as "Provider Services" on the ordering physician's behalf, or other person as designated by applicable laws, rules and regulations.
Article I. Sublicense
1. Health Gorilla Clinical Network. Health Gorilla hereby grants User a sublicense to access and use Health Gorilla’s proprietary system known as Health Gorilla Clinical Network whereby mutual operating efficiencies can be derived from the features and functions described herein, including automated Providers results transmissions, storage and retrieval, test status inquiry, data aggregation and trending, use of patient demographics for test ordering, off hours reporting, and ordering tests from Health Gorilla Clinical Network Providers via the Internet by directing an Internet web browser to visit a specific web site address operated by Health Gorilla. User acknowledges and agrees to access Health Gorilla Clinical Network solely for the purposes and subject to the terms of use, set forth herein. The sublicense granted hereunder shall terminate immediately upon and simultaneously with the expiration or termination of this Agreement, for whatever reason.
2. Health Gorilla’s Right to Modify. User agrees that Health Gorilla may supplement, delete, amend or otherwise modify Health Gorilla Clinical Network or the terms and conditions of this Agreement (including the Health Gorilla Clinical Network User Guide accessible through Health Gorilla Clinical Network, and any other documents referenced herein), in its sole discretion, from time to time.
Article II. Features and Functions
Subject to the terms of the Agreement, Health Gorilla Clinical Network shall provide User with certain features and functions ("Features and Functions"), which may include but not be limited to the following:
1. Test Ordering and Result. Health Gorilla Clinical Network allows (a) User to electronically transmit test requests to the Health Gorilla participating Providers' system(s) and (b) electronically transmits test results from the Health Gorilla Providers' system(s) to User for retrieval through Health Gorilla Clinical Network. User understands that it is User's responsibility to provide Health Gorilla with current billing information, including but not limited to diagnosis codes and patient and insurance information on all tests ordered by User from Health Gorilla. Health Gorilla assumes no liability for the failure or delay of User to retrieve patient test results from Health Gorilla Clinical Network once they are made available for retrieval.
2. Orders and Results Printing. Health Gorilla Clinical Network enables Users to manually print requisitions, results reports and analytics reports [described below] to a User provided printer.
Results Status. Health Gorilla Clinical Network allows User to access preliminary test results for tests performed by Health Gorilla's Providers retrieved through Results module in Health Gorilla Clinical Network. User understands that Information obtained through the Results function when the Result does not have Status "Final" is not the final or official report and is provided for informational purposes only. Health Gorilla does not control and has no effect on the Status of the test Result as submitted by Health Gorilla Providers. The Result Status is communicated by the Provider and is displayed in the Result module in Health Gorilla Clinical Network. Health Gorilla will furnish a copy of the official report to the ordering provider in accordance with Health Gorilla's customary practices.
Result Faxing and Forwarding. Health Gorilla Clinical Network enables User to fax or transmit electronically through Health Gorilla Clinical Network result reports to other persons selected by User. User understands that User has sole control over the results reports once retrieved by User. Health Gorilla does not assist or participate in User's selection of persons to whom User sends Results, nor does Health Gorilla assist or participate in the entry of fax numbers, or email addresses. It is User's sole obligation to confirm the intended recipients and their fax numbers or email addresses, and otherwise to comply with any and all laws regarding the security, use and further disclosure of protected health information.
Global Search. If available, User will be given access to test results for patients that have been referred for medical services at User's facility. User agrees to only access information for purposes of treatment. Unauthorized exploring or mining of patient information by User or any person under User's control is strictly prohibited and shall lead to immediate termination of User's access to Health Gorilla Clinical Network. Unauthorized access may be reported to the appropriate authority and additional actions may be taken in accordance with applicable federal, state and local laws and regulations.
Account Specific Order. Health Gorilla Clinical Network provides a User Administrator with the ability to define groups of tests routinely ordered together, or groups of diagnosis codes routinely utilized, by individual physicians within the User's office. Health Gorilla personnel will neither be able to create such account specific order groups on behalf of User, nor use any such groups established by User. User is solely responsible for selecting those tests that are medically necessary and the appropriate diagnosis codes based upon that patient's signs and symptoms, for each patient for the specific date of service. In addition, account specific order groups will include a "deselect" option so that the ordering physician can, within his or her medical discretion, exclude certain tests or certain diagnosis codes from any specific order.
Mobile Alerts. User may elect to receive alert notices on certain User-provided handheld devices. User is solely responsible for the setting the time windows and other operational rules for receipt of such duplicate notices. The Mobile Alerts function is being offered solely as a convenience to User, and is in addition to, and in no way replaces, Health Gorilla's standard method of reporting panic and alert result values to User.
Data Analytics. Through Health Gorilla Clinical Network, User will be able to access, trend, and compare historical Results data related to User's patients in the User's account and practice. Such data may include information about the patient(s) obtained from sources other than the User's account and practice that may reside in Health Gorilla’s systems. Certain enhanced analytic tools and functions may also be made available to Users for a fee and subject to the terms of a separate amendment. User understands and agrees that the data analytics and enhanced data analytics functions do not necessarily give User access to all information about a particular patient that Health Gorilla has within its systems. Data and Data Analytics provided to User through Health Gorilla Clinical Network is not intended for sale to third parties. User may use and disclose information obtained from Health Gorilla Clinical Network only as permitted by applicable laws and regulations.
User Notes and Annotations. Health Gorilla Clinical Network enables User to add notes or annotations ("Notes and Annotations") to the Referral screen in Health Gorilla Clinical Network for the limited purposes of viewing, printing and sharing views of such Notes and Annotations. User's Notes and Annotations do not appear as part of the chartable result delivered by Health Gorilla either when printed or viewed by User in Health Gorilla Clinical Network. Health Gorilla Clinical Network is configured in a manner such that Health Gorilla does not have the ability to review, monitor or see such Notes and Annotations. As such, User agrees that Health Gorilla shall not have knowledge nor notice of the content of, nor have any responsibility with respect to, any such Notes and Annotations.
User Tools. From time to time, Health Gorilla will provide Users and User Administrators with certain user tools, described more fully in the Health Gorilla Clinical Network User Guide, to enhance the User's experience and usability of Health Gorilla Clinical Network. Such User Tools may include the ability of User to categorize and mark results based upon categories established by User. Health Gorilla Clinical Network is configured in a manner such that Health Gorilla does not have the ability to review, monitor or see such User defined categories. As such, User agrees that Health Gorilla shall not have knowledge nor notice of the content of, nor have any responsibility with respect to, any such User defined categories.
Article III. User Obligations
1. User Information. User shall have a user name and a password for accessing Health Gorilla Clinical Network. User agrees that User will not permit any unauthorized individuals to have access to or use any user name or password. Passwords are to be updated every 90 days. User agrees to immediately inactivate any user name or password which becomes obsolete or available at any time to an unauthorized individual, including without limitation, as a result of personnel changes to ordering provider's office or inadvertent disclosure. User hereby represents to Health Gorilla that all information User provided to Health Gorilla is current, accurate and complete. User agrees to update such information immediately upon any changes in such information by making appropriate changes in Health Gorilla Clinical Network account settings.
2. Necessary Equipment. User is responsible for providing, at User's own cost, all telephone service (whether local or long distance), modems, phone lines, computers and other equipment, software, Internet access and any other items or services necessary for User to use Health Gorilla Clinical Network.
3. Notice to Health Gorilla. User shall notify Health Gorilla promptly in the event there is an error in results retrieval in Health Gorilla Clinical Network.
4. Confidentiality of Data. User acknowledges that the use of Health Gorilla Clinical Network will involve access to highly confidential information. Health Gorilla has no control of Data once it has been received by User It is User's obligation to comply with all applicable laws and regulations, including without limitation the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and all regulations relating thereto and any other laws and regulations governing restricted access to and the confidentiality of patient clinical records and individually identifiable health information. User agrees that User shall not disclose, by any means, such information to any unauthorized person, business or other entity. User agrees that User shall not permit any unauthorized person, business or entity to review or copy any such information except as provided by law. User will be responsible for violation of any applicable law and for any misuse of that information.
5. Security of Exporting of Information. Health Gorilla is not responsible for information exported from Health Gorilla Clinical Network by User and maintained outside of Health Gorilla Clinical Network on Equipment provided by Health Gorilla for use with Health Gorilla Clinical Network or on Equipment used to access Health Gorilla Clinical Network belonging to User. It is User's obligation and responsibility to protect the exported information in a manner that is consistent with the requirements of applicable laws and regulations including but not limited to HIPAA and HITECH.
6. Confidentiality of Health Gorilla Online Healthcare Clinical Network. User shall keep confidential the Health Gorilla Clinical Network product and any associated documentation and materials and shall use its best efforts to prevent unauthorized disclosure of the Health Gorilla Clinical Network product and any associated documentation and materials to or by the agents, employees or customers of User or competitors of Health Gorilla. User covenants that it shall not make any copies of all or any part of Health Gorilla Clinical Network or Health Gorilla Clinical Network components.
7. Express Permissions For Transmission and Receipt of Facsimile ("Fax") Transmissions. User has acknowledged through this agreement and registration that they are providing opt-in and explicit express permission for Health Gorilla to send faxes to them directly. This permission is granted in compliance with the Federal Junk Fax Prevention Act ("JFPA") passed into law in 2005 and in compliance with the California Junk Fax Prevention Act ("CJFPA") also identified as Cal. Bus. And Prof. Code 17538.43 (effective January 1, 2006).
8. Express Permissions for Receipt of Email. User has acknowledged through this agreement that they are providing opt-in and explicit express permission for Health Gorilla to send email to them directly. This permission is granted in compliance with the Federal Can Spam Act of 2003 and subsequent amendments.
9. Express Permission for Receipt of Telephone Solicitation. User has acknowledged through this agreement that they are providing opt-in and explicit express permission for Health Gorilla contact them via telephone directly.
10. Responsibility for Calculation of Meaningful Use Data. User has acknowledged through this agreement that they understand that they are solely responsible for the accuracy and completeness of calculations (which may be derived through the use Health Gorilla reports, calculators, or other Health Gorilla tools) related to Meaningful Use. It is understood that accuracy and completeness requires data which only the user can provide as some portions of the data flow may have gone through manual processes, systems and communications paths outside of the Health Gorilla service.
Article IV. Warranty, Liability and Indemnification
1. Warranty/Liability. As Health Gorilla Clinical Network utilizes the Internet, Health Gorilla Clinical Network is provided on an "as-is" and "as-available" basis. Health Gorilla disclaims any and all warranties whether express or implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose regarding Health Gorilla Clinical Network, its functionality, its use of the Internet or any Data provided under this Agreement. Health Gorilla assumes no liability or responsibility for how User or any of User's employees or other persons uses Health Gorilla Clinical Network or the Data. Additionally, Health Gorilla makes no representations of any kind, express or implied, regarding the safety, accuracy or efficacy of Health Gorilla Clinical Network or the Data, or that Health Gorilla Clinical Network will operate in a manner that is uninterrupted or error-free, or regarding any other subject matter of the Agreement. Notwithstanding any other provision of this Agreement, in no event shall Health Gorilla have any liability for any indirect, special, consequential, punitive or exemplary damages of any kind, including but not limited to lost revenues or lost profits, loss of business or goodwill or loss of data, in any way arising out of, related to or in connection with this Agreement, even if advised or otherwise has reason to know or knows of the possibility of such damages. This section shall apply even if and to the extent any other remedy provided under this agreement fails of its essential purpose.
2. Indemnification. User agrees to release, indemnify, defend and hold harmless Health Gorilla, its officers, directors, employees, agents, licensors and any third party who provides information to Health Gorilla Clinical Network, from and against all claims, losses, expenses, damages and costs, including reasonable attorney fees, resulting from (i) any violation of this Agreement, (ii) any negligent, intentional or wrongful conduct by User, User employees, agents or contractors accessing Health Gorilla Clinical Network through User's password, user name, equipment or Internet connection (iii) any breach of the confidentiality obligations set forth herein, and (iv) any use, misuse or disclosure of any information or data accessed through Health Gorilla Clinical Network.
Article V. Regulatory and Compliance
1. Purpose. User is being provided Health Gorilla Clinical Network and the Equipment solely for the purposes, Features and Functions set forth in this Agreement. User agrees it shall make no other use of Health Gorilla Clinical Network and/or the Equipment during the term hereof. User agrees that it shall not bypass or attempt to bypass any mechanism installed by Health Gorilla on Health Gorilla Clinical Network and/or the Equipment to restrict their use. If User fails to comply fully with the requirements set forth in this Agreement Health Gorilla shall have the right to immediately disconnect Health Gorilla Clinical Network, remove the Equipment, terminate this Agreement, and may report illegal activities to the appropriate authorities.
2. Restricted Use. It is the intent of the parties hereto to comply with Section 1877 of the Social Security Act (commonly known as the "Stark Provisions") and the anti-kickback provisions set forth in the fraud and abuse sections of 42 U.S.C. 1320a, and any regulations issued thereunder and any applicable similar state laws and regulations. Therefore, the parties agree that pursuant to this Agreement, Health Gorilla shall only provide items, devices or supplies that are used solely to communicate the results of and/or order tests or procedures performed by Health Gorilla for User.
3. Compliance with Applicable Laws and Regulations. The terms of this Agreement are intended to be in compliance with all federal, state and local statutes, regulations and ordinances, including, without limitation thereto, those laws and regulations referenced in this Article V applicable on the date this Agreement takes effect. Should legal counsel for either party reasonably conclude that any portion of this Agreement is or may be in violation of such requirements, or subsequent enactments by federal, state or local authorities, or if any change or proposed change would materially increase the cost of Health Gorilla's performance hereunder, or otherwise adversely affect Health Gorilla's ability to perform hereunder, Health Gorilla shall have the right to terminate this Agreement immediately and without penalty.
4. Referral of Medicare or Medicaid Testing. The parties acknowledge and agree that any benefit, consideration or remuneration conferred upon User by virtue of this Agreement is not conditioned upon the referral of Medicare or Medicaid testing to Health Gorilla.
5. Remedies. User agrees that Health Gorilla shall be entitled, in addition to other legal remedies it may have, to obtain injunctive relief to enforce the provisions of this Agreement concerning the use of Health Gorilla Clinical Network and to protect any copyrights, patents or other property rights of Health Gorilla contained therewith.
Article VI. Intellectual Property
1. Health Gorilla's Proprietary Rights. Health Gorilla is the creator and owner of Health Gorilla Clinical Network, and it and its vendors retain all right, title and interest in Health Gorilla Clinical Network. Nothing in this Agreement creates any ownership rights in User. User agrees not to change or delete any proprietary notices from Health Gorilla Clinical Network or other materials related to Health Gorilla Clinical Network. Any other copying, redistribution, retransmission or publication of any such information or material provided without the prior express written consent of Health Gorilla, is strictly prohibited.
Article VII. General Terms and Conditions
1. Term and Termination. This Agreement shall remain in force and effect for successive annual periods unless terminated. User and Health Gorilla shall have the right to terminate this Agreement, with or without cause, at any time, by giving the other party a fifteen (15) day prior written notice. In addition, if ordering provider should at any time discontinue using Health Gorilla's laboratory services, the parties acknowledge that there shall be no further need for User to have Health Gorilla Clinical Network or the Equipment and this Agreement shall terminate immediately. Notwithstanding the foregoing, Article IV, Section 14, Indemnification, as well as other provision that should by its context survive, shall survive termination of this Agreement for whatever reason. Without prejudice to any other rights, Health Gorilla may immediately terminate this Agreement if User fails to comply with the terms and conditions of this Agreement. In such event, User must discontinue use of Health Gorilla Clinical Network, return the Equipment and destroy all copies of the documentation and materials accompanying their use.
2. Governing Law. This Agreement is entered into and shall be governed by the internal laws of the United States and the state of California, without regard to its choice of law rules.
3. Use of Name. User shall not use Health Gorilla's name, trademark, logos, or otherwise refer to Health Gorilla in any press release, websites, marketing materials, advertisements or other broadcast or communication of any kind without first obtaining the Health Gorilla's advance written consent. Any unauthorized use under this Section shall be considered a material breach of this Agreement.
4. Entire Agreement. This Agreement, the Health Gorilla Clinical Network User Guide, the open source disclosures accessible on www.healthgorilla.com and other documents referenced herein, represent the entire agreement of the parties with respect to the subject matter hereof.