Introduction

Abaka, Inc. ("we" "our" or "us") provides an electronic personal health record service (the "Patient Portal") and mobile applications (“Abaka patient application”) as a free service to patients (and their personal representatives), on behalf of the doctors and other healthcare providers within our health record network ("Providers"). This Patient User Agreement (this "Agreement") applies to your use of the Patient Portal and Abaka patient application. By signing up for, or otherwise obtaining, an account, or by accessing or using the Patient Portal and the Abaka patient application, you are entering into this Agreement and agreeing to be bound by its terms. Please read this Agreement carefully, and do not sign up for an account or use the Patient Portal if you are unwilling or unable to be bound by this Agreement.

The Patient Portal and Abaka patient application is governed by our Terms of Use and Privacy Policy. Please review each carefully. In the event of a conflict between the terms of this Agreement and the Terms of Use and Privacy Policy, the terms of this Agreement control.

The Patient Portal and Abaka Patient Application

The Patient Portal and Abaka Patient Application allows your Provider to make certain health information available to you. In addition to your health information, if you have the authority under applicable law to access the health information of another individual, such as your child, that individual's Provider may, in his or her discretion, grant you access privileges for that individual's health information through our services.

Access to the services is granted to you by your Provider. If authorized by your Provider, you will receive an email or text message inviting you to register an account. To register, you will need to satisfy our identity verification and certification procedures. For each new Provider that grants access privileges, you will have the option to link that health information with your current account during the registration process. You should safeguard your user ID(s), password(s) and other logon information carefully, and not share them with anyone else. If you believe someone has had unauthorized access, please contact us immediately.

Your Provider (or the Provider of an individual with respect to whom you are authorized to access his/her health information) is responsible for granting access privileges to the Patient Portal and Abaka Patient Application and for the information made available to you through our servicesl. Because the Patient Portal and Abaka Patient Application includes information created by your Provider, such information may contain typographical errors, inaccuracies or omissions. In addition, although the Patient Portal and Abaka Patient Application displays some information from your medical records, it does not necessarily display all information in the health records retained by your Provider. If you think that your medical information displayed in the Patient Portal and Abaka Patient Application is inaccurate or incomplete, or if you would like to request a complete copy of your medical record, please contact your Provider directly. Because the Patient Portal and Abaka Patient Application includes information that is part of your Provider's health record about you, you cannot delete such information. You may, however, terminate your access to the Patient Portal or Abaka Patient Application by contacting Your Provider directly. Your Provider also retains the ability to revoke your access at any time.

Regulations Concerning Information Included in the Patient Portal and Abaka Patient Application:

We do not control your Provider's use or disclosure of your health information. Your Provider should give you a notice of privacy practices that describes how he or she uses and discloses health information about you. Your Provider's ability to disclose your health information for these and similar purposes is restricted by applicable laws and regulations, including the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Health Information Technology for Economic and Clinical Health of 2009 ("HITECH"), and the regulations adopted thereunder. If you wish to restrict the disclosures that your Provider makes of your health information, please contact your Provider directly.

We, like your Provider, are also subject to laws and regulations, including HIPAA, that govern the use and disclosure of certain personal and health information. We make the Patient Portal available to you on behalf of your Provider, as a "business associate" (as defined by HIPAA) of your Provider, pursuant to our Healthcare Provider User Agreement. Under this agreement, we are prohibited from, among other things, using individually identifiable health information in a manner that your Provider may not. We are also required to, among other things, apply reasonable and appropriate measures to safeguard the confidentiality, integrity and availability of individually identifiable health information we store and process on behalf of your Providers. Please click on our Healthcare Provider User Agreement, and to specifically review our business associate obligations to Providers who agree to our Healthcare Provider User Agreement, please review Sections 4 and 9 of that agreement.

Incorporation by Reference

Without limiting the generality of the foregoing, this Agreement incorporates by reference the following provisions of our Terms of Use with all references to the phrase "our Services" (as such term is defined therein) referring to and including the phrase "the Patient Portal" and “Abaka Patient Application” (as such term is defined in this Agreement): Sections 1.2 through 1.5 and Sections 4.2 through 4.14.

Arbitration

  1. EXCEPT FOR CLAIMS BY EITHER PARTY UNDER ANY OF SECTIONS OF THE TERMS OF USE LISTED IN PARAGRAPH 2 BELOW, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE SUBJECT TO FINAL AND BINDING ARBITRATION GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.). THE ARBITRATION SHALL BE CONDUCTED BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA") THEN IN EFFECT, AS MODIFIED BY THIS AGREEMENT, AND WILL BE ADMINISTERED BY THE AAA. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF IN CONNECTION WITH AN ARBITRABLE CONTROVERSY, BUT ONLY UPON THE GROUND THAT THE AWARD TO WHICH THAT PARTY MAY BE ENTITLED MAY BE RENDERED INEFFECTUAL WITHOUT SUCH PROVISIONAL RELIEF.

  2. THIS AGREEMENT TO ARBITRATE SHALL NOT APPLY TO CLAIMS BY ANY PARTY BROUGHT UNDER AND TO ENFORCE ANY ONE OR MORE OF THE FOLLOWING SECTIONS OF THE TERMS OF USE INCORPORATED BY REFERENCE INTO THIS AGREEMENT: 1.2, 1.3, 4.2, 4.3 or 4.5.

  3. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR PRIVATE ATTORNEY GENERAL IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIM WITH YOUR CLAIMS OR OUR CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY REPRESENTATIVE, CLASS, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM.

  4. Any part of this agreement to arbitrate that shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision of this agreement to arbitrate, and such other provisions shall remain in full force and effect.