RAIN Live Oak

Direct Secure Messaging Participation Agreement



RAIN Live Oak Technology (“RAIN Live Oak”) and the Participant identified on the Signature Page hereof (“Participant”), hereby agree to the following terms and conditions of this Participant Agreement (the “Participant Agreement”) for the provision of Direct Secure Message (“Services”) for use by the Participant.


Section 1: DESCRIPTION AND PURPOSE


RAIN Live Oak provides Health Information Service Provider services known as Direct Secure Messaging, which electronically connects Participants with different electronic health records or other clinical or public health information systems for purposes of payment, treatment, healthcare operations (as defined by HIPAA and to the extent that HIPAA , other federal law or state law permits such disclosures without the authorization of the individual), and population health management.


Live Oak Direct is not a central data repository where all patient records are stored; rather, it facilitates the transfer of health information electronically (“electronic health information”) between Participants using Direct Protocol.


Section 2: SERVICES


Participant desires to have access to Direct Messaging. Live Oak Direct agrees to provide the Direct Account and Participant agrees to pay for the services as described in Attachment A to this Agreement (“Services”), all in accordance with: 1) the terms and conditions of this Agreement and 2) all applicable laws, rules and regulations.


Section: 3 SERVICE FEES


In consideration for Live Oak Direct providing Participant with the Services, Participant agrees to pay the fees associated with such Services (”Service Fees”), subject to all of the terms and conditions of this Agreement.


Section 4: PAYMENT TERMS


Service Fees are due and payable annually, in advance, within 60 days of invoice date. Service Fees will be prorated by day to fiscal year (January 1 December 31).


Section 5: TERM


The term of this Agreement shall commence on the Effective Date and continue through the current Live Oak fiscal year (January 1 - December 31), unless earlier terminated as provided in this Agreement. The Agreement will automatically renew for up to four (4) additional one-year periods unless the Participant provides Live Oak Direct with at least sixty (60) days’ prior written notice of its intent not to renew prior to the end of the initial or any renewal term.


Section 6: PERMITTED USES


Participant agrees to use the Services to send Health Information to, or use Health Information received from, Other Participants in compliance with HIPAA, HITECH, and all other applicable federal and state law, rules and regulations, and only for the following purposes:


  1. Participant's or another Provider's treatment (as that term is defined in the HIPAA Privacy Rule) of the individual who is the subject of the Health Information sent or received by the Participant or the Participant’s Authorized User.


Section 7: PROHIBITED USE


Participant agrees not to use Live Oak Direct or the Services for any purposes other than as set forth in the Permitted Uses described above. Without limiting the generality of the foregoing, Participant shall not:


  1. Make the RAIN Live Oak service or the Participant's account thereof, in whole or in part, available to any person, entity or business other than the participant.


  1. Knowingly reproduce, publish or distribute content in connection with RAIN Live Oak that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy or other personal or proprietary right;


  1. Abuse or misuse RAIN Live Oak services in a manner that interferes with other participants' use of RAIN Live Oak services;


  1. Permit the introduction into the RAIN Live Oak system of any program, routine or data (such as viruses or worms) that does or may disrupt or in any way impede the operation of RAIN Live Oak, or alter or destroy any data within it;


  1. Use RAIN Live Oak services for the purposes of exploiting the Health Information of Other Participants.


Section 8: RESPONSIBILITIES OF PARTICIPANT


Where allowable by law,Participant shall, in a timely fashion, meet the following requirements:

  1. Comply in full with this Agreement;


  1. Register with RAIN Live Oak as a Participant in RAIN Live Oak Direct Secure Messaging;


  1. Facilitate verification of their identity as required by law;


  1. Provide a completed Identity Verification Form and other required identity information;


  1. Provide its own web browser and the workstations, desktops, laptops or other hardware, software, and applications as necessary to access the internet and access the Services;


  1. Update its information as necessary and required;


  1. Permit its registration information to be audited for consistency with other information sources;


  1. Be solely responsible for its use, nonuse and interpretation of any Health Information it receives, and the accuracy of any Health Information it sends, using the Services;


  1. Be responsible for its compliance with all applicable laws, including laws relating to maintenance of privacy, security and confidentiality of patient and other health information and the prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing or offensive messages, or otherwise unlawful material.



  1. Notify RAIN Live Oak of any breach of security or regulations or loss of data as required by law.


Section 9: TERMINATION & SURVIVABILITY


Upon termination of service, as outlined in the Business Associate Agreement, or whether due to request by participant, breach of contract or other cause, RAIN Live Oak will disable access to user data and automatically bounce (refuse to receive) any further messages/data addressed to the terminated user. In addition, data associated with the terminated user shall:

(a) Be removed immediately from the active RAIN Live Oak system.

(b) Be removed from back-up archives within two-weeks.


Upon termination of service, Participant shall:

  1. Cease all use of the RAIN Live Oak secure messaging system and, where applicable, notify related parties of the change of services.

  2. No longer attempt to receive messages or data through RAIN Live Oak.

  3. Continue to be responsible for conduct of self in regards to RAIN Live Oak and affiliates.


Upon termination of this Agreement, both RAIN Live Oak and Participant shall:

  1. Continue to be responsible for protection, maintenance and storage of any PHI created or received during the term of this Agreement, where the holding party still has permission to possess such data.

  2. If termination of this Agreement also revokes rights to possess any or all PHI created or received during the term of this Agreement, the responsible party will take all appropriate action to return and/or destroy such data wherever feasible, as defined in the Business Associate Agreement.


Section 10: ARBITRATION


Any disputes, claims, questions, or differences that cannot be resolved through mutual discussions may be finally settled through binding and compulsory arbitration

as administered by the American Arbitration Association (“AAA”) in the State of California, the United States of America in accordance with the provisions of its Commercial Arbitration Rules; and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator selected by the claimant and the arbitrator selected by respondent shall, within ten (10) days of their appointment, select a third neutral arbitrator.


If they are unable to do so, the parties or their attorneys may request the AAA to appoint the third neutral arbitrator. Prior to the commencement of hearings, each of the arbitrators appointed shall provide an oath or undertaking of impartiality. These remedies are cumulative and are in addition to any other rights and remedies that RAIN Live Oak may have at law or in equity. It is clarified that nothing hereinabove (including the arbitration provision) shall be construed to restrict RAIN Live Oak from approaching any appropriate court or authority in any relevant jurisdiction for the purposes of obtaining equitable and injunctive relief on behalf of itself or any Providers on behalf of whom it has provided a service hereunder


Section 11: ASSIGNMENT

This Agreement may not be assigned by either party without the written consent of the other party. This Agreement shall be binding upon and inure to the benefit of the successors, assigns, heirs and personal representatives of the respective parties hereto.


Section 12: ENTIRE AGREEMENT


This Agreement constitutes the entire Agreement between the parties hereto, and hereby supersedes any previous agreement or other communications, oral or written, between the parties with respect to the subject matter hereof.

Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.


Section 13: SEVERABLITY


If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.


Section 14: CHANGES TO THIS DOCUMENT


RAIN Live Oak reserves the right to modify this agreement at any time. If changes are made, an updated document will be published for Participant review, and acceptance will be renewed for the new agreement if needed.