AllyHealth

Group Terms and Conditions

AllyHealth

AllyHealth Customer Service Agreement

(Group Services)

Last updated: January 10, 2023

This AllyHealth Customer Service Agreement (this “Agreement”) is a binding agreement between AllyHealth LLC, a Pennsylvania limited liability company with its principal office at 24 N. Bryn Mawr Avenue, Suite 301, Bryn Mawr, PA 19010 (“AllyHealth”), and the entity specified on an Order Form (as defined in Section 1 below) that is ordering Services (as defined in Section 1 below) (“Customer”). This Agreement is effective as of the date of Acceptance (as defined in Section 1 below) (the “Effective Date”) and governs the provision and use of the Services.

By Accepting (as defined in Section 1 below) this Agreement, Customer agrees to the terms of this Agreement. The person Accepting this Agreement is entering into it on behalf of a company or other legal entity and such person represents and warrants that he or she has the authority to bind such entity to this Agreement.

NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

  1. SERVICES. During the Term (as defined in Section 4 below), AllyHealth will provide the services, on a non-exclusive basis, set forth on the attached Schedule 1, and which may be further specified in an Order Form (individually and collectively, the “Services”), for use by Customer’s Members. “Member” means each employee of Customer, or in the case of a trade association, each registered member of such association, including up to 5 legal dependents (or another number of dependents specified in an Order Form) of each employee or member, as applicable. The Services may include the AllyHealth telehealth services (the “AllyHealth Program”), the AllyHealth mobile app (the “AllyHealth App”) and the AllyHealth proprietary web-based tools for administering, promoting, or using the AllyHealth App, AllyHealth Program, or Services (the “AllyHealth Portal”). “Order Form” means any written or electronic document that references this Agreement and is mutually Accepted by AllyHealth and Customer for the provision of Services. All Order Forms shall be deemed incorporated herein by reference. “Accept,” “Acceptance,” “Accepting” means that a party has indicated its binding acceptance of this Agreement by signing an Order Form or, with respect to Customer, by clicking “I accept,” “I agree” or an equivalent message in the Services, or by otherwise using the Services.
  2. RESPONSIBILITIES OF THE PARTIES.
    1. AllyHealth. AllyHealth shall (i) provide the Services, including through its vendors, contractors, and other third parties; (ii) use commercially reasonable efforts to manage and securely maintain a database of Member profile information provided by Customer; and (iii) provide Customer with utilization reports and other reports mutually agreed upon in writing by AllyHealth and Customer (“Reports”). AllyHealth may discontinue any portion of the Services without liability at any time; provided, however, that AllyHealth will use commercially reasonable efforts to notify Customer and Members in advance of any such discontinuation.
    2. Customer. Customer shall (i) promote the use of the Services to Members; (ii) submit to AllyHealth, or its designated administrator, enrollment and eligibility information for all Members, including at a minimum, name, gender, subscriber ID, address, and date of birth; (iii) provide updated enrollment and eligibility information to AllyHealth, or its designated administrator, on a monthly basis; (iv) promptly distribute any Member identification and password information which may be provided by AllyHealth or its vendors to enable each Member to activate his/her account and use the Services; (v) bill and collect all payments from Members, if applicable; (vi) timely make all payments under this Agreement to AllyHealth; and (vii) comply with the requirements of the Do Not Call Policy attached hereto as Schedule 2. AllyHealth recommends that Customer leverage its communication channels for regular multichannel awareness and engagement campaigns to drive awareness of all benefits of the AllyHealth Program and Services, registration and appropriate utilization of Services including but not limited to email, direct mail, digital properties, push messages, patient portals and offline (call center, case managers) campaigns. AllyHealth further recommends that Customer implement at least two (2) such multi-channel campaigns or standalone email communications to Members. Additionally, Customer will provide such support that is reasonably requested by AllyHealth for AllyHealth to promote engagement and awareness of all benefits of the AllyHealth Program and Services, including but not limited to email, direct mail, digital properties, push messages, patient portals and offline (call center, case managers) campaigns.
    3. Customer shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the AllyHealth Technologies (as defined in Section 5(A) below) and shall notify AllyHealth promptly of any such unauthorized access or use; and (ii) use the AllyHealth Technologies only for Customer’s internal business purposes and not for service bureau use or time-sharing. Customer shall not (or permit any Member or any other person to) (a) sell, resell, license, rent or lease the AllyHealth Technologies; (b) use the AllyHealth Technologies to transmit infringing, libelous or otherwise unlawful or tortious material, or to violate third-party, including privacy rights; (c) interfere with or disrupt the integrity or performance of the AllyHealth Technologies, or any third-party data contained therein; or (d) make the AllyHealth Technologies or AllyHealth Program available to consumers.
    4. AllyHealth may, in its sole discretion and without notice, remove Customer’s access to Customer Materials (as defined in Section 5(D) below) in the AllyHealth Technologies, or suspend the ability of individual Members or other users to access the AllyHealth Technologies, if AllyHealth believes in good faith that such Customer Materials, or the activities of the affected Members or other users, as applicable, are infringing or violate applicable law or third-party rights, or threaten legal, operational or reputational harm to AllyHealth, its systems or clients, or to third parties. Additionally, AllyHealth may immediately suspend Customer or any Member from any or all of the Services if (i) AllyHealth believes in good faith that Customer or its representatives have breached any provision of this Agreement; or (ii) AllyHealth or any Third-Party Provider (as defined in Section 7(C) below) may suspend Customer if, in AllyHealth’s or the Third-Party Provider’s sole good-faith discretion, AllyHealth or such Third-Party Provider determines that Customer has violated the Third-Party Provider’s code of conduct or other requirements.
    5. The AllyHealth Technologies may link to or integrate with third-party applications, systems, and websites, such as Customer’s benefits providers. Customer understands and agrees that AllyHealth does not control, and has no responsibility for, such third-party applications, systems, or websites or any changes thereto. Customer warrants that it and the Members and other users will adhere to any terms of use that such third-party applications, systems, and websites may require.
    6. Customer shall not, and Customer shall ensure Members do not, (i) permit any third party to access the AllyHealth Materials (as defined in Section 5(b) below) except as permitted in this Agreement; (ii) create derivative works based on the AllyHealth Materials or combine AllyHealth Materials with any other products or services; (iii) copy, frame or mirror any part or content of the AllyHealth Materials; (iv) reverse engineer the AllyHealth Materials; (v) directly or indirectly through others, induce or attempt to induce customers of AllyHealth or a Third-Party Provider to terminate use of such AllyHealth or such Third-Party Provider, or to reduce or discontinue paying AllyHealth’s or such Third-Party Provider’s fees; (vi) cause material injury to the reputation of AllyHealth or a Third-Party Provider; or (vii) access the AllyHealth Materials in order to (a) build a competitive product or service or for any benchmarking purposes, (b) copy any features, functions or graphics of the AllyHealth Technologies, or (c) use the AllyHealth Materials other than as set forth in this Agreement.
  3. PRICING AND PAYMENT.
    1. Customer shall pay AllyHealth or, if specified in writing by AllyHealth, its designated administrator, (i) a per-eligible-Member, per-month fee (“PMPM Fee”) as set forth on an applicable Order Form; and (ii) any other fees as indicated on an applicable Order Form. Before any Services will be made available to Customer by AllyHealth, Customer shall pay AllyHealth or its designated administrator the first PMPM payment and any enrollment fees as outlined on an applicable Order Form for all Members enrolled in the Services.
    2. After Services are made available to Customer, unless otherwise expressly provided on an applicable Order Form, AllyHealth or its designated administrator will invoice Customer for all applicable fees hereunder on or around the first of each month and Customer shall pay each invoice prior to the 25th of the same month; provided that AllyHealth may invoice Customer for applicable fees (i) up to one year after accrual of such fees if the delay in invoicing is due to inadvertent error by AllyHealth or its vendors, and (ii) at any time in the event that AllyHealth discovers that fees are owed and have not been invoiced due to the negligence or willful misconduct of Customer or an audit has revealed that such fees are owed.
    3. Any payment not received by AllyHealth or its designated administrator on or before the due date shall bear interest at the rate of the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law commencing 15 days after the due date until such overdue amounts are paid in full. If any invoice is 28 days or more past due, AllyHealth may suspend the Services immediately. AllyHealth reserves the right to change the PMPM Fee and other fees upon providing written notice to Customer at least thirty (30) days prior to (i) the expiration of the then-current Term; or (ii) an increase in fees by a Third-Party Provider. Customer is solely responsible for billing and collecting all monies due, if any, from Members in connection with the Services.
    4. Customer shall be solely responsible for all sales, use or other similar taxes levied by any governmental authority with respect to amounts payable to AllyHealth under this Agreement, except for any taxes based upon AllyHealth’s net income or unless Customer provides in writing documentation of an applicable exemption. All amounts shall be payable by Customer to AllyHealth or its designated administrator without right of setoff, deduction or demand. Payment can be made either by ACH transaction, credit card payment, or by mailing a paper check to the following address:

      AllyHealth LLC
      24 N. Bryn Mawr Avenue
      Suite 301
      Bryn Mawr, PA 19010.

    5. Telemedicine utilization is included without additional fees up to 100% annualized utilization for voluntary group plans, 80% annualized utilization for micro group plans (50 employees or fewer), 60% annualized utilization for small group plans (51 to 100 employees), 50% annualized utilization for medium group plans (101 to 500 employees) and up to 30% annualized utilization for large group plans with 501 employees or more (the “Utilization Thresholds”). Annualized utilization is calculated as the number of consultations in a given month divided by the number of primary members in that same month, multiplied by 12. “Mental Health Utilization Thresholds” mean one half of the above listed Utilization Thresholds. Utilization will be reviewed, calculated and reported on a quarterly basis. If the utilization exceeds the Utilization Thresholds or Mental Health Utilization Thresholds, as applicable, during any of the quarterly reviews, AllyHealth will communicate this overage to the partner and/or client. Pricing adjustments will occur at renewal except as otherwise set forth in this Agreement. Pricing increases will be based on a formula of $0.05 per 1% over the Utilization Threshold and $0.10 per 1% over the Mental Health Utilization Threshold. AllyHealth reserves the right to adjust pricing prior to the renewal if utilization is more than 1.5 times the Utilization Threshold or Mental Health Utilization Threshold, as applicable.
  4. TERM AND TERMINATION.
    1. This Agreement shall begin as of the Effective Date specified above and, unless earlier terminated in accordance with the terms of this Agreement, shall remain in effect for one (1) year after the Effective Date. Unless either party provides written notice of its desire not to renew at least ninety (90) days prior to the expiration of the then-current term, this Agreement shall automatically renew for successive one (1) year terms (the initial term together with any renewal terms, are collectively referred to as the “Term”).
    2. Either party may terminate this Agreement at any time by providing the other party at least ninety (90) days’ prior written notice. Additionally, AllyHealth may immediately terminate this Agreement upon written notice to Customer if Customer (i) fails to make any payment of undisputed amounts to AllyHealth or its designated administrator when due and such failure continues for a period of fifteen (15) days following written notice of such failure by AllyHealth to Customer; or (ii) breaches any provision of this Agreement. For the avoidance of doubt and without limiting the foregoing, AllyHealth may immediately terminate this Agreement upon written notice to Customer if (a) Customer advertises or markets the AllyHealth Program in a manner that violates the terms of the Agreement, (b) Customer has conducted business related to the AllyHealth Program or this Agreement in violation of applicable laws, including, but not limited to the Telephone Consumer Protection Act (“TCPA”) or the Do Not Call Implementation Act, or in breach of Schedule 2, or (c) Customer causes material injury to AllyHealth’s or a Third-Party Provider’s reputation. Customer’s obligation to pay for any Services and each of the provisions of Sections 4(B), 5, 6, and 8-14 shall survive the expiration or earlier termination of this Agreement. Additionally, in the event of any termination of this Agreement by AllyHealth, AllyHealth may, at its sole and absolute discretion, provide Customer with up to one hundred twenty (120) days to migrate its Members to another telehealth platform; provided that Customer will continue to compensate AllyHealth for Services as provided in this Agreement as long as AllyHealth provide such post-termination Services.
    3. Immediately upon any expiration or termination of this Agreement, all licenses granted hereunder shall automatically terminate and Customer and all Members shall (i) cease using the Services and Third-Party Provider Materials (as defined in Section 7(C) below), and (ii) return or destroy all AllyHealth Materials, AllyHealth Intellectual Property and Third-Party Provider Materials. Notwithstanding the foregoing, as of the effective date of expiration or termination Members with a behavioral health consultation scheduled to occur after the effective date of expiration or termination may complete one (1) consultation in order to facilitate transition of care to another provider. AllyHealth shall invoice Customer for any such consultations in accordance with the terms of this Agreement.
  5. OWNERSHIP AND LICENSES.
    1. During the Term, AllyHealth hereby grants Customer a limited, revocable, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable, royalty-free license to, solely in accordance with the terms of this Agreement, including any applicable schedules, (i) access and use the AllyHealth Portal and applicable user documentation for its internal business purposes in connection with its use of the AllyHealth App, and (ii) permit Members to download, install and use the AllyHealth App. AllyHealth may suspend or discontinue any portion of the AllyHealth App and AllyHealth Portal (together, the “AllyHealth Technologies”) without liability at any time; provided, however, that AllyHealth will use reasonable efforts to notify Customer in advance of any such suspension or discontinuation.
    2. AllyHealth shall retain all right, title, and interest in and to the AllyHealth Program, the AllyHealth App, the AllyHealth Portal, the AllyHealth Marks (as defined in Section 5(C) below), Reports, AllyHealth’s Confidential Information (as defined in Section 6 below), Documentation (as defined below in this Section 5(B)), the Program Content (as defined in Schedule 1 attached hereto), and all other information, phone numbers, data, materials and other works of authorship made available to Customer, and all modifications, enhancements, and derivative works of the foregoing (collectively, “AllyHealth Materials”). “Documentation” means all user documentation and other materials made available to Customer related to the AllyHealth Program or its marketing, implementation, or use. All rights in the AllyHealth Materials which are not expressly granted in this Agreement are hereby reserved to AllyHealth. All AllyHealth Materials are proprietary and may not be reproduced, duplicated or disseminated for any purpose other than to promote and/or inform Customer and Members about the Services. Notwithstanding the foregoing, however, any toll-free telephone numbers provided by AllyHealth under this Agreement shall not be a dedicated number for the Customer’s Members only and shall remain the property of AllyHealth at the termination of this Agreement
    3. During the Term, AllyHealth hereby grants Customer a limited, fully-paid, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable (except to Customer’s service providers) license to distribute, use, and publicly display in the United States, AllyHealth’s corporate and product names, trademarks and logos (collectively, “AllyHealth Marks”) for the sole purpose of utilizing the Services in accordance with this Agreement. Customer will comply with all AllyHealth usage guidelines. All goodwill arising from any use of AllyHealth’s names, trademarks and logos shall inure to AllyHealth’s sole benefit. Customer agrees that it will not use or attempt to register in any jurisdiction any mark that is confusingly similar to the AllyHealth Marks, unless expressly approved in writing by AllyHealth. Customer will not remove or modify any AllyHealth Marks or other proprietary notices used by AllyHealth in conjunction with the Program Content.
    4. During the Term, Customer hereby gives AllyHealth a royalty-free, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to AllyHealth’s service providers as necessary for them to provide services to Customer in furtherance of this Agreement), limited license to reproduce, modify, transmit, distribute, display, and otherwise use Customer Materials (as defined below in this Section 5(D)) in connection with the AllyHealth Program and AllyHealth Technologies. Except for the limited rights expressly granted in this Agreement, as between Customer and AllyHealth, Customer reserves all right, title and interest in and to the Customer Materials. Customer shall retain all right, title, and interest in and to the Customer Marks (as defined in Section 5(F) below), Confidential Information of Customer, all Customer employee information, and all other works of authorship made available to AllyHealth, and all modifications, enhancements, and derivative works of the foregoing (collectively, “Customer Materials”).
    5. AllyHealth’s Confidential Information (as that term is defined in Section 6(A) below) and any other materials relating to the Services that are developed by or on behalf of AllyHealth including, without limitation, the Services, the AllyHealth Program, AllyHealth Technologies, AllyHealth Materials. AllyHealth Marks, and Program Content are the unique intellectual property of AllyHealth (collectively, “AllyHealth Intellectual Property”) (excluding all Confidential Information of Customer, Customer Marks (as defined below) and Member Information (as defined in Section 6(A) below)), and all right, title, and interest including, but not limited to, all copyright, patent, trade secret and any other intellectual property rights and other rights therein belong to AllyHealth. Furthermore, AllyHealth will automatically own all proprietary rights, together with all domestic and foreign patent rights, over any improvements made to the Program Content, the Services or the AllyHealth Intellectual Property (excluding any Confidential Information of Customer, Customer Marks and Member Information) even if it was suggested by Customer, any Member, or their employees or contractors.
    6. “Customer Marks” means Customer’s corporate and product names, trademarks and logos. During the Term, Customer hereby grants AllyHealth a limited, non-transferable (except as part of a permitted assignment of this Agreement), non-sublicensable (except to AllyHealth’s service providers), royalty-free, worldwide license to distribute, use, and publicly display Customer Marks in connection with its provision of the AllyHealth Technologies to Customer. All goodwill arising from any use of Customer Marks shall inure to the sole benefit of Customer.
    7. From time to time Customer or its Members may provide suggestions, enhancement or modification requests, recommendations or other feedback relating to the AllyHealth Program or AllyHealth Technologies (collectively, “Suggestions”). AllyHealth owns all right, title and interest in any Suggestions, and Customer hereby assigns and transfers to AllyHealth all its right, title and interest (including all intellectual property rights) in and to the Suggestions.
  6. CONFIDENTIALITY.
    1. “Confidential Information” means any information that (i) is marked confidential, proprietary or secret, or bears another similar mark; or (ii) is unmarked and a reasonable business person would consider such information to be confidential based on the nature of such information and the circumstances of disclosure; and (iii) in each instance under clauses (i) and (ii), relates to the disclosing party (the “Disclosing Party”) or its Affiliates (as defined in Section 15(D) below) and is disclosed to or obtained by the receiving party (the “Receiving Party”) in connection with this Agreement, whether before or after the effective date of this Agreement. Confidential Information of AllyHealth includes, without limitation, the AllyHealth Program, AllyHealth Materials, AllyHealth Intellectual Property, AllyHealth Technologies, Reports, and Documentation. Confidential Information of Customer includes, if applicable, all Member protected health information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) and any other Member information provided to AllyHealth under this Agreement (collectively, “Member Information”).
    2. Confidential Information shall not include any information to the extent that the Receiving Party can reasonably demonstrate such information (a) is or becomes part of the public domain, other than as a result of the actions of the Receiving Party or its employees or contractors, (b) was already rightfully known to the Receiving Party as of the time it is disclosed to or obtained by the Receiving Party, (c) is subsequently learned from a third party not under a confidentiality obligation to the Disclosing Party, or (d) is independently developed by the Receiving Party without reference to the other party’s Confidential Information.
    3. Except as necessary to perform its obligations or exercise its rights under this Agreement, the Receiving Party shall not (i) use the Disclosing Party’s Confidential Information, or (ii) disclose the Disclosing Party’s Confidential Information to any third party. Each party shall exercise the same degree of care with the other party’s Confidential Information as it exercises with its own confidential and proprietary information, and in no event less than a reasonable degree of care. The Receiving Party shall disclose Confidential Information only to those employees who have a “need to know” in connection with this Agreement. Additionally, the Receiving Party may disclose Confidential Information to service providers, agents and other third parties third parties that have binding obligations of confidentiality equivalent to those in this Agreement. The Receiving party shall ensure such third parties’ compliance with such confidentiality obligations.
    4. Each party may disclose Confidential Information of the other party to any regulator or to otherwise comply with any applicable law or regulation, or in response to a lawfully issued subpoena or other court order, provided that the party being required to disclose Confidential Information shall (unless prohibited by applicable law), promptly upon receipt of such a request or court order, give written notice to the other party and provide reasonable assistance to the other party (at the other party’s expense) in seeking an injunction, protective order, or other relief to prevent disclosure.
  7. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
    1. AllyHealth will comply with the requirements of HIPAA applicable to it with respect to any PHI provided to AllyHealth by Customer or a Member.
    2. “Healthcare Provider” means a provider of medical, behavioral health or pharmacy services (such services, collectively, “Healthcare Services”). Healthcare Providers may be licensed medical professionals, including physicians, psychologists, or allied health professionals. “Financial Services Provider” means a provider of financial, insurance, retirement, benefits, or related services (collectively, “Financial Services”). Healthcare Providers and Financial Services Providers may have independent legal, contractual, or professional obligations, including obligations to maintain independent professional judgment or to maintain the confidentiality of Member Information made available to them.
    3. Customer acknowledges, understands, and agrees that (i) AllyHealth is not a Healthcare Provider or a Financial Services Provider; (ii) all Healthcare Services, Financial Services, and certain other services made available under this Agreement are provided by third parties (each, a “Third-Party Provider”); (iii) each Third-Party Provider is solely responsible for any Healthcare Services, Financial Services, and any other product, service or advice provided to Customer or Members through such Third-Party Provider (collectively, “Third-Party Services”); (iv) Third-Party Providers of Healthcare Services made available under this Agreement will not treat severe and/or emergency conditions through the Services and may recommend that Members visit their primary care physicians, specialists, or a local provider of applicable services, including emergency services, if deemed appropriate, in the sole and absolute discretion of the applicable Healthcare Provider; (v) when a Member provides prior written permission, such Healthcare Provider will facilitate continuity of care; (vi) all software (in source code or object code form), technology, policies, manuals, documentation, marketing materials, corporate and product names, trademarks and logos, and any other information or materials made available by a Third-Party Provider to Customer or Members and all modifications, enhancements and derivative works thereof (collectively, “Third-Party Provider Materials”) remain the sole property of the applicable Third-Party Provider; and (vii) Third-Party Provider Materials may only be used or disclosed in a manner contemplated by this Agreement. Each Third-Party Provider may have additional terms and conditions (“Third-Party Terms”) relating to its Third-Party Services. Customer shall comply, and Customer shall ensure that each Member complies, with all applicable Third-Party Terms. A breach of the Third-Party Terms shall constitute a breach of this Agreement.
    4. Each party represents and warrants to the other party that (i) it has the full right, power, and authority to enter into and to perform this Agreement; (ii) the Acceptance, delivery, and performance of this Agreement have been duly authorized by all necessary corporate action; and (iii) this Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and other laws affecting the rights of creditors generally.
    5. AllyHealth represents and warrants that the AllyHealth Technologies will materially conform to the applicable Documentation. As AllyHealth’s sole liability, and Customer’s sole and exclusive remedy, for any breach of the foregoing warranty, AllyHealth shall use diligent efforts to remediate any material non-conformities in the AllyHealth Technologies within a reasonable time (or, if AllyHealth has failed to remediate any such non-conformity or provide a reasonable workaround within thirty (30) days, Customer may at its option terminate this Agreement with no additional liability to AllyHealth for such termination). Notwithstanding the foregoing, AllyHealth shall not be responsible for any defects or non-conformities that arise from (i) Customer’s or any Member’s misuse of AllyHealth Technologies or Program Content, or breach of this Agreement, (ii) any modification of the AllyHealth Technologies by a person other than AllyHealth or its authorized subcontractors, (iii) Customer’s or any Member’s hardware or software, or failure to maintain minimum technology standards for use of the AllyHealth Technologies as specified by AllyHealth from time to time, (iv) Customer Materials, or (v) a Force Majeure Event as provided in Section 15(F) below.
    6. Customer represents and warrants that (i) will comply with all applicable laws, including, without limitation, the TCPA, the Do Not Call Implementation Act, the CAN-SPAM Act, HIPAA, and all applicable state medical and consumer privacy laws, (ii) it has all rights, consents and permissions to provide the Customer Materials and Member Information to AllyHealth for the purposes contemplated by this Agreement, and (iii) use of Customer Materials or Member Information by the AllyHealth Technologies as contemplated by this Agreement does not violate, misappropriate or infringe upon any third party’s patent, trademark, copyright, trade secret, or privacy rights or any other proprietary right of any third party. Customer will provide AllyHealth with evidence of any required rights, consents and permissions upon request.
    7. DISCLAIMER OF WARRANTIES. ALLYHEALTH DOES NOT WARRANT THE UNINTERRUPTED OR ERROR- FREE OPERATION OR PROVISION OF THE SERVICES OR THE ALLYHEALTH TECHNOLOGIES. ALL INFORMATION, MATERIALS, AND SERVICES ARE PROVIDED TO CUSTOMER AND/OR ANY MEMBER “AS IS.” EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALLYHEALTH HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, LOSS OF DATA, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALLYHEALTH MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SATISFACTION OF REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION DRUG PRODUCTS, OR ANY TREATMENT, ACTION OR APPLICATION OR PREPARATION OF MEDICATION BASED ON INFORMATION OFFERED OR PROVIDED THROUGH THE SERVICES. ALLYHEALTH SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO CUSTOMER, ANY MEMBER, OR ANY THIRD PARTY ARISING FROM ANY THIRD PARTY PROVIDER MATERIALS OR THIRD PARTY SERVICES, INCLUDING FOR PROFESSIONAL LIABILITY, FOR LOSS OF INVESTMENT VALUE, OR FOR ANY MEMBER INFORMATION IN A THIRD PARTY PROVIDER’S POSSESSION OR CONTROL.
  8. LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT OR FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR CUSTOMER’S BREACH OF ANY LICENSE OR USE RESTRICTIONS IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES OR ALLYHEALTH TECHNOLOGIES: ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ALLYHEALTH’S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE MONTH PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM. THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  9. INDEMNIFICATION.
    1. AllyHealth shall indemnify, defend, and hold harmless Customer and its Affiliates and its and their respective officers, directors, shareholders, members, managers, employees and agents from all out-of-pocket costs, damages, losses, judgements, fines, and expenses (including reasonable attorneys’ fees) (collectively, “Out-of-Pocket Costs”) arising from any third-party demand, claim or proceeding (each, a “Third-Party Claim“) alleging that the source code contained in the AllyHealth Technologies, as provided by AllyHealth and used strictly in accordance with this Agreement, infringes or misappropriates any third party’s U.S. patent, trademark, copyright, or trade secret rights, except to the extent any such infringement or misappropriation arises from (i) alterations made by Customer, its Members, or third parties to AllyHealth Technologies without AllyHealth’s consent, (ii) any Customer Materials, Member Information, specifications, instructions or other information provided by Customer or any Member, (iii) breach of this Agreement or improper or unauthorized use of the AllyHealth Technologies by Customer or any Member or any other third party obtaining access through Customer, or (iv) combination of the AllyHealth Technologies with products or services that are not provided by AllyHealth.
    2. If the AllyHealth Technologies become, or in AllyHealth’s opinion likely to become, the subject of a Third-Party Claim of infringement or misappropriation, AllyHealth shall, at its option and expense either: (i) procure for Customer the right to continue to use the AllyHealth Technologies, or (ii) replace or modify the infringing AllyHealth Technologies to make their use non-infringing without loss of substantial functionality. Notwithstanding the foregoing, if AllyHealth, in its sole discretion, determines that neither of such options is available to it on commercially reasonable terms, AllyHealth, at its option, may terminate Customer’s license for the allegedly-infringing AllyHealth Technologies or this Agreement, in which event AllyHealth shall refund to Customer the unused portion of any fees prepaid under this Agreement. The infringement indemnification remedies provided herein shall be AllyHealth’s sole and exclusive liability, and Customer’s sole remedy, for any claims or allegations relating to intellectual property infringement or misappropriation.
    3. Customer shall indemnify, defend, and hold harmless AllyHealth and its Affiliates and its and their respective officers, directors, shareholders, members, managers, employees, agents, and Third-Party Providers from all Out-of-Pocket Costs arising from any Third-Party Claim arising out of or in connection with (i) any breach of this Agreement by Customer or breach of Third-Party Terms by Customer or a Member, (ii) Customer’s gross negligence or willful misconduct, (iii) Company’s negligent identification, verification or authentication process or any negligent misidentification, verification or authentication of a Member by Customer, (iv) any use of the Services or AllyHealth Materials, or Third-Party Services or Third-Party Provider Materials by or on behalf of Customer or its Members, or (v) violation by Customer or its representatives of applicable laws, including HIPAA, CAN-SPAM, the TCPA or its implementing regulations, or state laws regulating similar subject matter as the TCPA, or breach by Customer or its representatives of Schedule 2. In the event of any Third-Party Claim arising from any alleged violation of the TCPA or state counterpart laws by a Member, Customer and AllyHealth shall cooperate in good faith with each other with respect to reasonable remedial measures or reasonable mitigations in connection with such alleged violation.
    4. The indemnified party shall promptly provide the indemnifying party with written notice of any Third-Party Claim for which it seeks indemnification hereunder, and the indemnifying party shall assume the defense thereof; provided, however, that failure of the indemnified party to provide such notice will not release the indemnifying party from any of its indemnity obligations except to the extent that the indemnifying party’s ability to defend such Third-Party Claim is materially prejudiced by such delay. The indemnifying party shall not (i) settle or compromise any such Third-Party Claim (a) without the full release of the indemnified party from all liabilities and obligations associated with such Third-Party Claim (except for any obligations that the indemnified party has consented to in writing), or (b) in a manner that imposes any obligation on the indemnified party (including the payment of any amount) without the prior written consent of the indemnified party, or (ii) admit liability or wrongdoing on behalf of an indemnified party without the indemnified party’s prior written consent. Each party shall have the right to participate, at its expense, in the defense of any Third-Party Claim covered hereunder with counsel of its own choosing.
  10. AUDIT. “Audit” means to inspect or make copies of the books, statements, accounts, and other financial records relevant to the Audit Purpose. “Audit Purpose” means verifying the compliance of Customer with its obligations relating to payments under this Agreement and/or Schedule 2. AllyHealth or a Third-Party Provider or a representative thereof may audit Customer for the Audit Purpose. The person conducting the Audit shall provide no less than five (5) business days’ prior written notice to Customer of the date the Audit is to be performed. The Audit shall be conducted during Customer’s normal business hours, without unreasonably disrupting Customer’s business operations, and if conducted onsite, the Audit shall be conducted at Customer’s place of business. An Audit may not be performed more than one (1) time in any twelve (12) month period. In the event the results of any Audit shows underpayment by Customer of more than five percent (5%) during the twelve months prior to such Audit, Customer shall be responsible for paying the amount of the underpayment, which AllyHealth shall invoice in accordance with the terms of this Agreement. In the event the results of any Audit show that AllyHealth has been overpaid by more than five percent (5%) during the period of time under review, Customer shall be promptly issued a credit for the overpayment or, at Customer’s request, promptly issued a refund for such overpayment.
  11. NOTICES. All notices permitted or required to be given pursuant to this Agreement shall be given in writing and shall be delivered (i) by hand delivery, (ii) by certified mail, postage prepaid, return receipt requested, or (iii) by nationally recognized overnight courier service that provides proof of delivery. All such notices shall be addressed to the parties at the addresses set forth above or to such other address as a party may designate from time to time by notice complying with the terms of this Section 11. Each such notice shall be effective upon delivery.
  12. DISPUTE RESOLUTION. Except as otherwise specifically set forth in this Agreement, the parties hereby agree to resolve any and all controversies, claims and/or disputes arising out of this Agreement (each, a “Dispute”) solely pursuant to the terms of this Section 12.
    1. All Disputes shall first be referred to the parties’ authorized representatives for discussion and resolution of the Dispute (“Management Resolution”), which representatives are the individuals who have executed this Agreement on behalf of their party or have sufficient authority to resolve such Dispute.
    2. If Management Resolution fails to resolve the Dispute, then the Dispute shall be resolved by final, binding arbitration (“Arbitration”) administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules. Arbitration shall be conducted in Philadelphia, Pennsylvania. In the event of any Arbitration, action to compel Arbitration, action to enforce an Arbitration award, or action to seek injunctive relief pursuant to this Agreement, the prevailing party in such proceeding shall be entitled to an award of its reasonable attorneys’ fees and costs for each such proceeding, including the Arbitration, trial and for all levels of appeal, in addition to any other relief to which it may be entitled.
  13. GOVERNING LAW; VENUE. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania (without giving effect to principles of conflicts of laws). Subject to the terms of Section 12 above, exclusive jurisdiction and venue for the adjudication of any disputes relating to this Agreement shall be in the state and federal courts (including the appellate courts) having jurisdiction for Philadelphia, Pennsylvania, and the parties hereby consent to the jurisdiction and venue of such courts.
  14. INJUNCTIVE RELIEF; CUMULATIVE REMEDIES. Each party acknowledges a breach of its confidentiality obligations in this Agreement or infringement of the other party’s intellectual property rights may cause irreparable damage to the other party, the exact amount of which may be difficult or impossible to determine, and that the remedies at law for any such breach may be inadequate. Therefore, notwithstanding anything to the contrary in Section 12 above, each party agrees that in the event of a breach or threatened breach of its confidentiality obligations in this Agreement or infringement of the other party’s intellectual property rights, in addition to any other remedy which may be available at law or in equity, the other party shall be entitled to seek injunctive relief from any court of competent jurisdiction.
  15. GENERAL TERMS.
    1. This Agreement, including any schedules or exhibit attached hereto, is the entire agreement between AllyHealth and Customer and supersedes any prior understandings or written or oral agreements between AllyHealth and Customer with respect to the subject matter of this Agreement. AllyHealth may update or amend this Agreement from time to time, in whole or in part, including any exhibits or schedules. Such updates or amendments will be binding on Customer and will have an effective date at least thirty (30) days after Customer’s receipt of written notice from AllyHealth (email sufficing).
    2. No waiver of a breach of any provision of this Agreement by any party shall be construed as a waiver of a subsequent breach of the same or any other provision of this Agreement.
    3. In the event that any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, all other terms of this Agreement shall remain in full force and effect.
    4. This Agreement may not assigned, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either party may assign this Agreement without consent, upon written notice to the other party, (i) to any successor to substantially all of its business or assets by merger, reorganization, combination, consolidation, purchase of assets or otherwise, or to any party acquiring substantially all of the assets or business of the business unit of such party to which this Agreement relates, or (ii) to an Affiliate. “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with a party, where “control” of an entity means ownership or the ability to direct the voting of at least fifty percent (50%) of the equity voting interests in such entity. This Agreement is intended for the benefit of AllyHealth and Customer and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
    5. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent entity and not as an agent of the other party for any purpose, and neither will have the authority to bind the other. There are no third party beneficiaries intended by this Agreement, including, for the avoidance of doubt, Members.
    6. Neither party will be liable for any breach of the Agreement, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, public health emergency, unavailability of utilities or communications services (including access to the Internet), civil disturbances, criminal acts of third parties, acts of terror, acts of civil or military authorities, or acts of God (collectively, a “Force Majeure Event“). Upon the cessation of such Force Majeure Event, the affected party shall promptly resume its performance of any suspended obligations.

AllyHealth

 

SCHEDULE 1

DESCRIPTION OF SERVICES

Additional information about the Services may be specified in an Order Form.

  1. Telemedicine
    • 24/7 access to a network of doctors and pediatricians who can diagnose, treat, and prescribe for Members for a variety of everyday, non-emergency health issues.
  2. 24/7/365 Mental Health Support
    • Connect live 24/7 with a mental health coach who can provide in-the-moment support, or direct Members to other resources, such as text-based coaching, mindfulness coaching, short-term counseling, life coaching, and more.
  3. Scheduled Mental Health Visits
    • Choose a mental health specialist from a network of providers for scheduled talk therapy or psychiatry visits by video or phone from the comfort of a Member’s home.
  4. Practical Daily Support
    • Access to a concierge to help with everyday needs like finding childcare resources, planning a vacation, legal advice, financial advice, and much more.
  5. Health & Wellness Coaching
    • Want to lose weight? Quit smoking? Eat healthier? Get fit? Virtual health & wellness coaches can help Members with these goals and more.
  6. Savings Tools
    • Members can save on prescriptions and medical bills with in-app healthcare savings tools.

Schedule 2
Do Not Call Policy

    1. Purpose

      This Do Not Call Policy (this “Policy”) is subject to and part of the AllyHealth Customer Service Agreement (the “Agreement”) to which it is attached, and applies to Customer and its service providers (each, a “Company”) that initiate telemarketing calls to current or potential Members. Any capitalized terms that are not defined in this Policy shall have the meanings set forth in the Agreement. It is also applicable to such calls made to wireless telephone numbers to the extent that calls to wireless telephone numbers are permissible by applicable law.

    2. Summary of Applicable Laws

      The United States as well as several states, have enacted laws governing telemarketing. The Do-Not-Call Implementation Act of 2003 requires the establishment of a National Do-Not-Call Registry. Consumers may register their telephone numbers on that registry. Once a telephone number is registered, that number may not be called by commercial telemarketers unless there is an “Established Business Relationship” (discussed below) with the consumer. In addition, states have enacted their own laws mandating state do-not-call lists. Companies that engage in telemarketing are required to implement procedures to prevent commercial telemarketing calls to numbers on those lists, unless such calls are subject to an applicable exception such as the Established Business Relationship exception, discussed below.

      Company-Specific Do Not Call List – In addition to the National Do-Not-Call Registry and the state do-not-call lists, the Companies that engage in telemarketing are required to maintain a company-specific do-not-call list or internal do-not-call list. Any consumer has the right to request that the Companies not call it for telemarketing purposes. When a Company receives a request from a person to be placed on the company-specific do-not-call list, that Company must implement the request within thirty (30) days of receiving the request. The Companies may not call persons on the company-specific do-not-call list without regard to whether the customers’ telephone numbers are included on the National Do-Not-Call Registry or on any state do-not-call list. The Companies will not make telemarketing calls to persons on their company-specific do-not-call list.

      The TCPA also prohibits the use of an automatic telephone dialing system or an artificial or prerecorded voice to place telemarketing calls or transmit text messages to cell phones or use an artificial or prerecorded voice to make calls to residential lines without first obtaining the prior express written consent of the consumer.

      In addition to the national and state laws prohibiting telemarketing calls to telephone numbers included on the National Do-Not-Call Registry, state do-not-call lists, and company-specific do-not-call lists, the Companies agree to comply with other legal requirements governing telemarketing. These include:

      • Calling Hour Limitations – Calls may only be made during permissible hours. Under the federal law, permissible hours are between 8:00 a.m. and 9:00 p.m. local time at the location of the called number; some states have permissible calling hours which differ from the permissible hours under federal law;
      • No Call Abandonment – Once a call is answered, the called party must be connected to a sales representative within two (2) seconds of the called party’s greeting.  Calls not routed to sales representatives within two seconds are considered to be “abandoned calls.”  Not more than three (3) percent of call attempts may be abandoned within any thirty (30) day period;
      • No Premature Disconnects – No call may be disconnected by the caller prior to fifteen (15) seconds after completion of dialing or four (4) rings;
      • Caller Identification Requirements – All persons engaged in telemarketing must identify themselves by company name and provide the name, address, and telephone number of the company they work for; and
      • No Threats or Obscene Language – Persons initiating telemarketing calls may not threaten or intimidate any called party or use obscene language.

      Each Company shall comply with each of the telemarketing requirements listed above and implement such procedures as necessary to ensure that its service providers comply with those requirements as well. Calls to telephone numbers on the Do-Not-Call lists and other violations of the requirements listed above may subject AllyHealth, Company or their business partners to claims against it as well as to governmentally-imposed sanctions, including monetary fines.

    3. Summary of Telemarketing/Do-Not-Call Compliance Program

      AllyHealth understands that its Companies engage in calls for the following purposes:

      • in response to inquiries about company products and services, including Internet inquiries;
      • to sell products and services to potential new customers;
      • to follow up on prior sales solicitations;
      • to inform current customers of new products and services;
      • to notify or remind existing customers of service dates, delivery dates, of the need to replace existing equipment; and
      • other calls in compliance with applicable law.

      Companies that engage in telemarketing must access database services to ensure compliance with Do-Not-Call requirements. Those databases should include relevant Do-Not-Call lists which are applicable to the Company’s telemarketing activities. These include:

      • The National Do-Not-Call Registry; and
      • State do-not-call lists for states where the Company engages in telemarketing calls.

      The Company is responsible for applicable fees to obtain access to the national Do-Not-Call Registry, and relevant state do-not-call lists. Persons engaged in telemarketing calls on a Company’s behalf, whether Company’s employees or third party vendors, will utilize the services mentioned.

      The Company will also maintain a Company-specific do-not-call list, which all persons engaged in telemarketing on the Company’s behalf must have access to and contains a company-administered database of consumers who request not to be called (i.e., to be included on the Company’s do-not-call list). All requests for inclusion on the Company-specific do-not-call list will be implemented within 30 days of receipt of the request. IT IS THE COMPANY’S RESPONSIBILITY TO ESTABLISH AND FOLLOW PROCEDURES TO PREVENT CALLS TO PERSONS ON ANY APPLICABLE DO-NOT-CALL LIST.

    4. Do-Not-Call Compliance and Procedures
      • No person will be called by or on behalf of the Company for telemarketing purposes using any automatic telephone dialing system, artificial or prerecorded voice to cell phones or an artificial or prerecorded voice to residential lines unless the Company has obtained prior express written consent for such calls.
        • For purposes of this Policy, prior express written consent shall only mean an agreement, in writing (including a writing that satisfies the E-Sign Act) that clearly authorizes the Company to deliver, or caused to be delivered, advertisements or telemarketing messages using an automatic telephone dialing system, or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered, which written agreement with the consumer includes a clear and conspicuous disclosure informing the person signing (A) by executing the agreement, the person authorizes the Company to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) the person is not required to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
      • Consumers only will be called during hours that such calls are permissible.
      • The Company’s employees and service providers calling on its behalf will not call any telephone number included on the National Do-Not-Call Registry, or any state do-not-call list unless the Company either has the called party’s requisite permission to call a specific telephone number included on one of the aforementioned registries or lists, or has an Established Business Relationship with the consumer. For purposes of this policy, an Established Business Relationship includes the following with respect to the called party:
        • purchase, delivery or payment for any product or service provided by the Company in the previous 18 months; or
        • inquiry to the Company regarding a product or service of the Company in the previous 3 months.
      • Some states might prohibit telemarketing calls to telephone numbers on the state’s do-not-call list even if there is an Established Business Relationship. Telemarketing calls will not be made to any telephone number on those states’ do-not-call list.
    5. Training

      All persons engaged in telemarketing on the Company’s behalf will be required to attend a training course prior to commencement of any telemarketing calling and will be required to attend “refresher” training not less frequent than every year.

    6. Compliance Program and Sanctions
      • Company may from time to time receive complaints and inquiries from federal and state departments involving alleged violations of do-not-call and other telemarketing requirements in connection with its relationship with AllyHealth. Company will assign a senior-level employee to investigate and resolve all such complaints and inquiries, to prepare detailed responses to such complaints and inquiries. The Company will retain detailed records of all such complaints and inquiries sent to the Company and the Company’s disposition of those complaints and inquiries. The Company will make such records available to AllyHealth upon AllyHealth’s reasonable written request.
      • The Company may also periodically monitor telemarketing calls for compliance with applicable laws and regulations. All such monitoring will be done under the supervision of a senior-level employee. Caller persons will be notified in advance whenever calls are being monitored and/or recorded for compliance or training purposes.
      • The Company may be subject to potential liability and sanctions for violating applicable do-not-call and other telemarketing laws and regulations. The Federal Trade Commission has authority to commence proceedings, and some states have their own enforcement authority including, in some cases, authority to demand payment of fines and/or stipulated penalty amounts. The Company must comply with all applicable do-not-call and other telemarketing requirements, to avoid any basis for imposition of sanctions.
      • The Company shall promptly report to AllyHealth any inquiries, complaints, or claims made against it for the violation of the TCPA, Do Not Call regulations or other laws and regulations referenced in this Policy.
    7. Disciplinary Policy
      • Breach of this Policy or violation of any applicable law or administrative rule or regulation governing telemarketing activities is a material breach of the Agreement.
      • AllyHealth may conduct an investigation if it believes Company has breached this Policy or violated any applicable law or administrative rule or regulation governing telemarketing activities. In the event of such a violation or breach, AllyHealth and Company shall mutually cooperate in good faith on such investigation and shall work together to determine the cause of such violation and any potential remediation with respect to such Company to cure such violation or breach.

Prior Terms and Conditions versions:

2022

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