The Helia Connect® Terms and Conditions
These Helia Connect® Terms and Conditions (the “Terms and Conditions”) are between Helia Care, Inc. (“Helia Care,” “we,” “us,” or “our”) and the entity subscribing to Helia Connect® (“Customer,” “you,” or “your”). These Terms and Conditions are incorporated into the Member Agreement between you and Helia Care. Your agreement to and acknowledgement of these Terms and Conditions are a requirement of any Member Account. Capitalized terms used herein and not otherwise defined herein shall have the meaning assigned to such terms in the Member Agreement, any Policy, or as defined in the Definitions document located here, all of which are hereby incorporated by reference.
1. Purpose of Agreement. These Terms and Conditions govern your access to, use of, and transactions made through Helia Connect. Helia Connect® enables registered business customers to purchase products and services for business purposes and to access and use a set of features, services, software, and applications specifically intended for business customers. We may make available to you, through Helia Connect, certain additional services or products that are subject to additional terms and conditions, and if you use such services or purchase such products, those terms and conditions (the “Feature Terms”) will also apply to you. We will provide you notice of the Feature Terms prior to activating any additional services or products that are subject to such Feature Terms. Products made available through Helia Connect® may be designed for, and only appropriate for, specialized uses; accordingly, you may only use them as intended by, and in compliance with all instructions provided by, the manufacturers.
2. Eligibility; Account Security. By signing up for a Member Account, you represent that (i) the individual acting on behalf of your entity has the authority to bind you, (ii) you have all requisite right, power, and authority to enter into, perform the obligations under, and grant the rights and authorizations in the Agreement, and (iii) you are an Eligible Entity. “Eligible Entities” include all types of businesses (for example, LLCs, LLPs, corporations, partnerships, sole proprietorships, and PLLCs), all types of governmental entities (federal, state, local, and quasi-governmental entities), and all types of non-profit organizations (including 501(c) organizations, 527 organizations, and similar tax-exempt organizations). Upon completion of the Member Agreement, a “Member Account” will be created for your organization. You may authorize others to create a “User Account” associated with your Member Account. You are responsible for all activities that occur under your Member Account. Please know that during registration, your Authorized End Users are required to accept the Helia Care Terms of Use available at: https://www.heliacare.com/policies/terms-of-use/ and the Privacy Policy available at: https://www.heliacare.com/policies/privacy-policy/. As set forth in the Terms of Use, no Authorized End User may access or use the Services for any commercial use. For clarification purposes, commercial use means any reproduction or purpose that is marketed, promoted, or sold and incorporates a financial transaction outside of the license and use rights granted herein. You are responsible for maintaining the security of the passwords associated with your Member Account and User Accounts; if you believe an unauthorized person has access to your password, Member Account, or an associated User Account, you must contact us immediately and change any compromised passwords.
3. Access. Access to Helia Connect® is granted pursuant to the terms set forth herein, in our Policies, or as otherwise set forth on any Member Agreement.
4. The Service, License, and Responsibilities.
4.1 Service and Access Credentials. You must provide us with cooperation, assistance, information, and access reasonably necessary to initiate your use of the Service. As part of the implementation process, you may identify an administrative username and password to be used to establish your account. You may use the administrative username and password to create subaccounts for your Authorized End Users (each with unique login IDs and passwords). You are responsible for the acts or omissions of any person accessing the Service using your passwords or login procedures. We may, in our sole discretion, refuse to register, or cancel, login IDs that violate these Terms and Conditions.
4.2 Access and Use License.
a. Subject to these Terms and Conditions and the Agreement within which these Terms and Conditions are incorporated, we grant you a nonexclusive, nonassignable, nontransferable license (without right to sublicense) to: (a) access Helia Connect® and use the Service within the limits set forth in the Agreement, solely for your internal business purposes; and (b) install and use the On-Site Software and any Mobile App solely in connection with your authorized use of the Service. The Service is made available to you solely as we deliver it and subject to our Service Warranty; nothing in these Terms and Conditions grant you any right to receive any copy of the Service or any software other than the On-Site Software and the Mobile App. Your access and use of the Service must comply with all other conditions set forth in all documentation, such as user guides and help, regarding the Service provided to or made available to you in any form (the “Documentation”). These conditions include, for example, any requirement regarding data format, number of permitted users, or prohibited uses. Any Authorized End User’s act or omission in connection with access or use of the Service that would breach these Terms and Conditions if you did such act or omission constitutes your material breach of these Terms and Conditions and the Agreement.
b. Helia Connect® includes access to and use of the Service offerings available through Helia Connect® as of the acceptance date of your Member Account. The Service offerings available through Helia Connect® are described more fully at http://heliacare.com/contracted-services, which may be updated from time to time as we change and update our service offerings. By using the Service, you agree to receive, without further notice or prompting, access to updated versions of the Service and related third-party software. Your continued use of the Service constitutes acceptance of the foregoing terms.
4.3 Helia Care’s Rights and Obligations.
a. Performance and Support. We will provide the Service in accordance with our Service Warranty and in a professional manner consistent with reasonable, generally-accepted industry standards. We undertake commercially reasonable measures to assure system availability.
b. Hosting. We have entered into arrangements with Amazon Web Services for the hosting of Helia Connect® (the “Third-Party Host”). We will ensure that the Third-Party Host is contractually bound to protect Customer Data at least at the same level that Customer Data is protected under these Terms and Conditions. You understand that we are subject to the Third-Party Host’s service levels, use policies, and terms of service and our Services and our Service Warranty may be limited by such third party service levels and policies.
c. Security and HIPAA Compliance. We will maintain and handle all Customer Data in accordance with industry-standard privacy and security practices and measures adequate to preserve its confidentiality and security, as required by the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and regulations promulgated under those laws, and applicable correlated state law (collectively, “Privacy Laws”). In the event you are a “covered entity” (as defined under the Privacy Laws) and Customer Data contains Patient Data, we will be considered a “business associate” (as defined under the Privacy Laws). Accordingly, if applicable, the Parties will comply with the Business Associate Policy as set forth here.
d. Support. We will use commercially reasonable efforts to provide you with technical support and updates for the Service in accordance with our regular business practices. We may charge in accordance with our then-current policies for any support resulting from problems, errors, or inquiries related to Customer Data or your systems.
e. Professional Services. You may purchase additional Professional Services under a separate Professional Services agreement. Absent such an agreement, we have no obligation to perform any Professional Services.
f. Injunctions of the Service. If the Service becomes or, in our opinion, is likely to become the subject of any injunction preventing the Service’s use as contemplated in these Terms and Conditions, we may, at our option (i) obtain for you the right to continue using the Service or (ii) replace or modify the Service so that it becomes non-infringing without substantially compromising its principal functions. If neither (i) nor (ii) is possible or reasonably feasible, then we may terminate the Agreement immediately on written notice to you.
4.4 Customer Responsibilities.
a. Client Data. You represent and warrant that you have read and agree to the Data Policy as set forth here.
b. Restrictions. You must comply with all applicable laws in using the Service. You represent and warrant that you and your Authorized End Users’ use of and access to the Service complies with all applicable laws, rules, and regulations. You and your Authorized End Users may not directly or indirectly:
i. modify, copy, or create derivative works based on the Service or the Technology, or use any Confidential Information to create any service, software, or documentation that performs substantially the same functionality as the Service;
ii. create Internet links to or reproduce any content forming part of the Service, other than for your own internal business purposes;
iii. disassemble, reverse-engineer, decompile, or use any other means to attempt to gain unauthorized access to, or attempt to discover, any source code, algorithms, or trade secrets underlying any part of the Service or the Technology, or access it in order to copy any ideas, features, content, functions, or graphics of the Service or the Technology (except and only to the extent these restrictions are expressly prohibited by applicable law);
iv. interfere with or disrupt the performance of the Service;
v. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material via the Service;
vi. send or store malicious code via the Service;
vii. use any of the Service’s components separately from the Service;
viii. encumber, sublicense, transfer, distribute, rent, lease, time-share, or use the Service or the Technology in any service bureau arrangement or otherwise for the benefit of any third party;
ix. use or allow the transmission, transfer, export, re-export, or other transfer of any product, technology, or information you obtain or learn in connection with your use of the Service in violation of any export control or other laws and regulations of the United States of America or any other relevant jurisdiction; or
x. take (or cause any third party to take) any action designed to intentionally circumvent the intent of this Agreement.
A breach of any of the foregoing items shall be deemed a material breach of the Agreement.
c. Customer Systems.
i. You are responsible for providing all subscriptions and credentials necessary for us to receive Customer Data and, in the case of your use of the On-Site Software, all equipment, servers, devices, storage, other software, databases, network, and communications equipment and ancillary services needed to send data to us (collectively, “Customer Systems”). You must ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation. You represent and covenant that Customer Systems comply with the Privacy Laws.
ii. You are responsible for maintaining and managing your Customer Systems and configuring your Customer Systems in accordance with any instructions we provide as necessary for access to the Service.
4.5 Use of Marks. Neither Party shall use the trademarks or tradename of the other Party in publicity releases, advertising, or other publicly distributed or posted materials without securing the prior written consent of such other Party; provided, however, the trademarks or tradename of the authorizing Party shall remain the proprietary property of the authorizing Party notwithstanding any such permitted use. To the extent you provide us any trademarks or tradenames to facilitate your use of the Service, you hereby grants us a limited right to use any such trademarks or solely to the extent required for us to provide the Service.
5. Technology. As between us and you, we and our Affiliates, licensors, and licensees own and retain all right, title, and interest in, to, and under the Service, the Aggregated Data, Helia Connect®, the Mobile App, the On-Site Software, the Documentation, all Helia Care intellectual property, and all other related software, applications, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, ideas, concepts, inventions, systems, interfaces, tools, utilities, forms, report formats, techniques, methods, processes, algorithms, know-how, trade secrets, and other technologies and information used by us in providing the Service (collectively, the “Technology”). The Service and related Technology are protected by applicable intellectual property laws and rights. Your access to and use of the Service, the Technology, the Documentation, and any related materials are governed by these Terms and Conditions, the Agreement, and any documents or other agreements incorporated by reference herein. We grant no licenses by implication in these Terms and Conditions or the Agreement. We reserve and retain any rights not expressly granted to you. If you or your Authorized End Users provide us with any suggestions, enhancement requests, recommendations, or other feedback relating to the Service or the Technology (“Feedback”), you grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate Feedback into any Helia Care products or services as long as it does not include any of your Confidential Information, as provided in the Confidentiality Policy as set forth here.
6. Representations, Warranties, and Disclaimers.
6.1 Service Warranty. We warrant to you during the Term of the Agreement that the Service will comply with the material functionality in accordance with these Terms and Conditions, and that such functionality will be maintained in all material respects in subsequent updates to the Service (the “Service Warranty”). Your sole and exclusive remedy for our breach of this warranty shall be that we shall use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality described in accordance with the terms and conditions of this Agreement within a reasonable period of time. However, we shall have no obligation with respect to this warranty claim unless notified of such claim within thirty (30) days of the first material functionality problem.
6.2 Disclaimers. OTHER THAN AS EXPRESSLY PROVIDED IN THE SERVICE WARRANTY, WE PROVIDE THE SERVICE AND THE TECHNOLOGY WITHOUT ANY WARRANTY. WITHOUT LIMITING THE FOREGOING SENTENCE, WE MAKE NO WARRANTY THAT: (A) THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, OR BUG-FREE; (B) THE SERVICE WILL BE SECURE, RELIABLE, OR TIMELY; OR (C) THAT ANY ERRORS IN THE SERVICE CAN OR WILL BE CORRECTED. WE DISCLAIM ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, DATA ACCURACY, SYSTEM INTEGRATION, NONINTERFERENCE, QUALITY, VALUE, OPERABILITY, CONDITION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. HELIA CARE’S OBLIGATIONS UNDER THE AGREEMENT ARE FOR YOUR BENEFIT ONLY. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
6.3 Limitations. We are not liable for any failures in the Service or any other problems related to Customer Data or Customer Systems or any satellite, telecommunications, network, or other equipment or service outside of our facilities or control, including any failures of the Third Party Host. We make no guaranty that other facilities or suppliers will subscribe to or use the Service.
6.4 Fair Market Value. The Parties acknowledge and agree that the compensation set forth herein is intended to represent the fair market value for all Services provided by us pursuant to the Agreement.
7. Indemnifications.
7.1 Indemnity by Helia Care. We agree to indemnify you against any third-party claims and resulting liabilities attributable to or arising from: (a) any assertion that the Service, the Technology, the Documentation, or any other materials as provided by us under these Terms and Conditions infringe any intellectual property right of any third party or (b) any breach by Helia Care of the confidentiality obligations as set forth in the Confidentiality Policy, located here.
7.2 Indemnity by you. You agree to indemnify us against any third-party claims and resulting liabilities attributable to or arising from: (a) any actual or alleged breach of your representations and warranties; (b) your unauthorized use of the Service or the Technology; (c) your actual or alleged violation of any right of any third party; and (d) your breach of the Agreement, including a breach of the confidentiality obligations as set forth in the Confidentiality Policy, located here.
7.3 Proceedings. The indemnified Party must promptly notify the indemnifying Party in writing of any claim or proceeding for which indemnity is claimed. Failure to so notify does not void the indemnifying Party’s obligation to indemnify the other Party. The indemnified Party must allow the indemnifying Party to solely control the defense of any claim or proceeding and all settlement negotiations. The indemnified Party must also provide the indemnifying Party with reasonable cooperation and assistance in defending any such claim at the indemnifying Party’s cost. The indemnifying Party may not enter into any settlement that imposes liability or obligations on the indemnified Party without obtaining the indemnified Party’s prior written consent of the settlement.
7.4 Exclusive Remedy. This Section contains each Party’s exclusive remedies and the indemnifying Party’s sole liability for infringement claims.
8. Limitation of Liability. We shall not be liable regarding the Agreement’s subject matter, regardless of the form of any claim or action (whether in contract, negligence, strict liability, law, or equity), for any:
8.1 loss or inaccuracy of data, loss or interruption of use, or cost of procuring substitute technology, goods, or services;
8.2 indirect, punitive, incidental, reliance, special, exemplary, or consequential damages, including, but not limited to, loss of business, revenues, profits, and goodwill, even if advised of the possibility of such damages; or
8.3 damages, in the aggregate, in excess of the amounts paid or owed to us by you (if any) under the Agreement during the preceding six-month period.
9. General Provisions.
9.1 Entire Agreement. The Agreement between the Parties on the subject matter and supersede all prior negotiations, understandings, or agreements. The Agreement may not be modified without our consent. We expressly exclude, reject, and object to any general terms and conditions contained in your general vendor or purchasing agreements or policies.
9.2 Waivers. No waiver of any right under the Agreement is valid unless made in writing signed by the waiving Party. A Party’s failure to enforce any right or remedy under the Agreement at any time does not constitute a waiver of any right or remedy.
9.3 Survival. The Agreement’s provisions regarding confidentiality, proprietary rights, representations and warranties, disclaimers, indemnifications, limitations of liability, effects of termination, and the general provisions in this Section survive the Agreement’s termination.
9.4 Severability. If any provision of the Agreement is determined to be illegal or unenforceable, the provision is limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full effect and enforceable.
9.5 Governing Law. The Agreement is governed by and must be construed in accordance with the laws of the State of Arizona without regard to conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction applies to the Agreement or these Terms and Conditions. Exclusive jurisdiction and proper, convenient venue for actions related to the Agreement and your access to and use of the Service are in the state and federal courts located in the State of Arizona. Both Parties consent to personal and subject matter jurisdiction and convenient venue of such courts with respect to any such actions. In any such action, the prevailing Party is entitled to recover from the other Party the prevailing Party’s costs and expenses (including reasonable attorney fees) incurred in connection with that action and enforcing any judgment or order obtained in that action.
9.6 Force Majeure. If either Party is rendered unable to perform any of its obligations under the Agreement or these Terms and Conditions (except payment obligations) by any cause beyond its reasonable control, that Party must notify the other Party in writing of that fact, thus extending performance for the duration of the cause.
9.7 Notices. The sole permissible method of giving any written notice under the Agreement is by email sent with a “read” receipt requested. Notice is deemed given and received when the sending Party receives the “read” receipt back from the receiving Party or can otherwise show that the email was delivered.
9.8 Successors and Assigns. The Agreement inures to the benefit of and binds the Parties’ respective successors. No Party may assign the Agreement without the other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, the rights and obligations of either Party may be assigned in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities and/or assets of such Party.
9.9 Independent Contractors. The Parties are independent contractors under the Agreement. Nothing in the Agreement makes either Party the employer, employee, agent, or representative of the other Party or makes the Parties subject to a joint venture or partnership.
9.10 Counterparts. The Agreement or any items executed in connection with a Member Account to which the Agreement relates may be executed in counterparts by manual or electronic signature, each of which is an original and all of which together constitute one instrument.
