Kipu Health LLC (“Kipu”) facilitates electronic prescriptions to users who have entered into a Service Agreement with Kipu through network transmission services provided by Surescripts, LLC (“Surescripts”). As a condition of your accessing Surescripts’ services, Surescripts requires that you agree to be bound by these additional terms (“Surescripts Terms”). These Surescripts Terms are cumulative with, and do not in any way limit, your obligations under your Service Agreement and Kipu Master Terms and Conditions; and, by accessing Surescripts’ services, you are thereby agreeing to these Surescripts Terms. Any terms or phrases not otherwise defined in these Surescripts Terms shall have the meaning given to them in your Service Agreement.
1. Access and Uses
Surescripts facilitates the transmission of electronic pharmaceutical prescribing information between participants in the Surescripts network, through which prescription benefit and history information, including eligibility, insurance coverage, and formulary information, is transmitted electronically between participants in the Surescripts network from a Data Source (as defined below) to a prescriber at the point-of-prescribing, and through which prescription messages are routed electronically from a prescriber to the pharmacy of a patient’s choice. You hereby agree and acknowledge that in accessing Kipu’s electronic prescription services, you will be using the services of Surescripts to facilitate such transmissions. Furthermore, you agree to access and utilize the Surescripts network only in accordance with these Surescripts Terms. “Data Source” shall mean (a) a pharmacy benefit manager (“PBM”), health benefit payor or administrator, or other similar entity that has entered into a written agreement with Surescripts to allow access through the Surescripts network to information in its possession; and (b) a pharmacy, pharmacy chain, an entity that has contracted with Surescripts to become either a pharmacy or prescriber aggregator and is designated as such by Surescripts, or other similar entity that has entered into a written agreement with Surescripts to allow access through the Surescripts network to information in its possession.
You agree to keep confidential any and all of Surescripts’ confidential information, as well as the confidential information of all entities that have contracted with Surescripts to become either a pharmacy or prescriber aggregator and is designated as such by Surescripts (“certified aggregators”), entities that have been designated by Surescripts as a value-added reseller of the Surescripts services, and connectivity to other entities that aggregate prescribers or pharmacies (“certified VARs”), Data Sources, prescribers, health care providers, or facilities, technology vendors, and other entities or individuals that have entered into a written agreement with Surescripts, either directly or indirectly, in order to access, provide, or communicate through the Surescripts network, whether explicitly marked confidential or reasonably believed to be confidential.
3. Compliance with Applicable Law
You certify that you shall comply with all applicable federal, state and local laws and regulations. You hereby certify that you have obtained or will obtain any and all necessary patient consents and authorizations required by applicable law, including all federal, state, local, common law, rules, regulations, directives, and guidelines prior to using any of Surescripts services, including its electronic prescription service. You hereby represent and warrant that all messages transmitted via the Surescripts network will originate from legally authorized locations. You hereby agree and acknowledge that Surescripts and Kipu, each individually, reserves the right to terminate your use of the Surescripts network at any time, for any or no reason, with or without notice.
NEITHER SURESCRIPTS NOR KIPU MAKES ANY REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY THROUGH THE SURESCRIPTS NETWORK OF ANY PARTICULAR DATA SOURCE OR OTHER PARTICIPANT IN THE SURESCRIPTS NETWORK. AT ANY TIME, DATA SOURCES AND OTHER PARTICIPANTS IN THE SURESCRIPTS NETWORK MAY BE ADDED OR DELETED WITHOUT PRIOR NOTICE. YOU ACKNOWLEDGE AND AGREE THAT, AT ANY TIME AND WITHOUT PRIOR NOTICE, A DATA SOURCE MAY ELECT NOT TO RECEIVE PRESCRIPTIONS OR OTHER MESSAGES. YOU FURTHER AGREE THAT, AS THE TREATING PHYSICIAN OR OTHER HEALTH CARE PROVIDER, YOU HAVE VERIFIED PRESCRIPTION BENEFIT OR PRESCRIPTION HISTORY INFORMATION WITH EACH PATIENT OR THE PATIENT’S REPRESENTATIVES BEFORE SUCH INFORMATION IS RELIED UPON OR UTILIZED IN DIAGNOSING OR TREATING THE PATIENT. NEITHER SURESCRIPTS NOR KIPU INDEPENDENTLY VERIFIES OR REVIEWS THE INFORMATION TRANSMITTED THROUGH THE SURESCRIPTS NETWORK FOR ACCURACY AND COMPLETENESS. SURESCRIPTS IS NOT A HEALTH PLAN, HEALTH CARE PROVIDER OR PRESCRIBER. THE SURESCRIPTS NETWORK IS NOT INTENDED TO SERVE AS A REPLACEMENT FOR A WRITTEN PRESCRIPTION WHERE NOT APPROVED AS SUCH BY THE APPROPRIATE GOVERNMENTAL AUTHORITIES OR WHERE SUCH WRITTEN PRESCRIPTION IS REQUIRED FOR RECORD KEEPING PURPOSES, OR APPLICABLE PRESCRIPTION DOCUMENTATION. USE OF THE SURESCRIPTS NETWORK IS NOT A SUBSTITUTE FOR A HEALTH CARE PROVIDER’S STANDARD PRACTICE OR PROFESSIONAL JUDGMENT. ANY DECISION WITH REGARD TO THE APPROPRIATENESS OF TREATMENT, OR THE VALIDITY OR RELIABILITY OF INFORMATION, IS SOLELY YOUR RESPONSIBILITY. THESE DISCLAIMERS SHALL SURVIVE TERMINATION OF YOUR SERVICE AGREEMENT WITH KIPU.
5. No Warranty
THE SURESCRIPTS NETWORK IS PROVIDED “AS IS” AND WITHOUT WARRANTIES. ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO THE SURESCRIPTS NETWORK ARE HEREBY DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. SURESCRIPTS DOES NOT WARRANT THAT ITS NETWORK WILL MEET ANY REQUIREMENTS OR THAT IT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. Neither Surescripts nor Kipu is responsible in any manner for errors or failures of proprietary systems and programs of third parties, nor shall Surescripts be liable for errors or failures of Kipu’s software or operational systems not caused by the Surescripts network.
Except to the extent arising solely from the gross negligence or willful misconduct of Surescripts, and subject to the limitations set forth below, you shall indemnify and hold harmless Surescripts and Kipu (and their respective affiliates, officers, directors employees or agents) from and against any and all loss, damage, or expense (or claims of damage or liability) asserted against Surescripts or Kipu (or their respective affiliates, officers, directors employees or agents) by third parties and arising directly out of any breach of these Surescripts Terms, any loss of connectivity to the Surescripts network due to acts or omissions inconsistent with the Surescripts Terms, or information provided to the Surescripts network by you, or arising out of the use of such information when furnished by Surescripts to Kipu, you or to other third persons.
7. Force Majeure
Neither Surescripts nor Kipu shall be liable or deemed in default for failure to fulfill any obligation under these Surescripts Terms due to causes beyond their reasonable control, including acts of God or of the public enemy, acts of any governmental authority in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, electrical power failures, telecommunication or internet backbone outages, failure of an internet access provider, and neither Surescripts nor Kipu shall be liable for losses, expenses or damages, direct, ordinary, special, consequential or punitive, resulting directly or indirectly from such causes.
You authorize Surescripts and Kipu to access, inspect and audit your records relating to the use of the Surescripts network, Surescripts data, and data or information provided by you.
By using Surescripts’ services, you authorize Surescripts to contact you for survey or statistical purposes. You also agree that Surescripts shall be entitled to use information received from you including any ideas, advice, recommendations or the like relating to the Surescripts network (“Surescripts Network Feedback”) and you grant and assign Surescripts all right, title and interest in and to all Surescripts Network Feedback. You also agree that Surescripts shall be entitled to disclose information received from you for the purpose of (and only to the extent necessary for) operating Surescripts’ business and providing the Surescripts services, including, sharing your information or data with other Data Sources to the extent necessary to fulfill the terms of these Surescripts Terms, but only in accordance with all applicable law, or pursuant to a valid order issued by a duly authorized court or Government authority.
10. HIPAA Compliance
11. Commercial Messaging
You agree that you will not attempt to use the Surescripts network for commercial messaging, including, but not limited to, advertising, instant messaging, or pop-up ads, to influence or attempt to influence, through economic incentives or otherwise, the prescribing decision of a prescriber at the point of care.
12. Additional Services
You agree that if Kipu makes the following services available to you via the Surescripts network, the Surescripts network shall only be accessed with and in conjunction with the treatment of a specific patient in a schedule or walk-in outpatient visit or another specific treatment event, and not for inpatient or other acute services: Eligibility Status Transaction – Allows you to match a patient to his/her pharmacy benefits through a request/response transaction. Prescription History Transaction – Allows you to request prescription history for a specific patient. Formulary Coverage Status Transaction – Allows you to request formulary and coverage status for a specific drug for a specific patient.