INBOX ASSIST (AFFINEON‑POWERED) ADDENDUM TO DOCUCARE INC. SOFTWARE‑AS‑A‑SERVICE AGREEMENT AND BUSINESS ASSOCIATE ADDENDUM
Last Updated: January 15, 2025
This Addendum (the "Addendum") forms part of the Software‑as‑a‑Service Agreement (the "Agreement") between DocuCare Inc. ("CarePilot") and the "Customer" named in the Cover Sheet to the Agreement, and is effective as of the Agreement Effective Date set forth in the Cover Sheet (the "Addendum Effective Date"). Capitalized terms used but not defined herein have the meanings given in the Agreement or the Business Associate Addendum ("BAA").
RECITALS
CarePilot will make available a product called "CarePilot Inbox Assist (Affineon‑Powered)" ("Inbox Assist") that leverages certain services provided by Affineon Health, Inc. ("Affineon").
Customer desires to access Inbox Assist through CarePilot. CarePilot remains the sole contracting party with Customer for Inbox Assist, and Affineon will act as CarePilot's subcontractor/sub‑processor solely for delivery of Inbox Assist.
The Parties enter into this Addendum to (i) confirm Affineon's role as a permitted subcontractor under the BAA and authorize disclosures of PHI as necessary to provide Inbox Assist; and (ii) flow down certain product‑specific terms required for the Affineon‑powered functionality.
1. Definitions.
"Affiliate Data" means (a) all data, software, and information transmited to Customer regarding Affineon; (b) all data, records, and information generated in Affineon's business or operations; (c) all Affineon intellectual property and derivative works in such intellectual property; and (d) data, records, or information occurring in any form, including written, graphic, electronic, visual, or fixed in any tangible medium of expression and whether developed, generated, stored, possessed, or used by Affineon, Affiliate Data does not include any data or information that relates exclusively to Customer or Customer's business, operations, or activities
"Affiliate Terms" means Affineon's then‑current Terms of Use and Privacy Policy applicable to authorized users of the Affineon platform, as made available on Affineon's website and or in the Inbox Assist application and updated from time to time.
"AI Outputs" means any recommendations, prompts, predictions, analyses, audio or visual content, or other materials generated by the Affineon platform for Inbox Assist.
"Authorized User" has the meaning given in the Agreement and includes Customer's personnel who access Inbox Assist.
"EHR" means Customer's electronic health record system(s).
"Inbox Assist" means the CarePilot product branded "CarePilot Inbox Assist (Affineon‑Powered)" made available by CarePilot and powered in part by Affineon technology.
2. Order of Precedence; Scope.
This Addendum supplements the Agreement and the BAA only with respect to Inbox Assist. In the event of a conflict between this Addendum and the Agreement, this Addendum controls solely for Inbox Assist. In the event of a conflict involving the use or protection of PHI, the BAA controls.
3. Subcontractor Designation; PHI Disclosures.
Customer acknowledges and authorizes Affineon as CarePilot's subcontractor/sub‑processor for Inbox Assist. Customer authorizes CarePilot to disclose PHI to Affineon, and to permit Affineon to create, receive, maintain, or transmit PHI on CarePilot's behalf, solely as necessary to provide Inbox Assist. CarePilot shall maintain with Affineon a written subcontractor agreement imposing safeguards, restrictions, and obligations that are no less protective than those imposed on CarePilot under the BAA. CarePilot will limit disclosures to the minimum necessary.
4. Customer Obligations Specific to Inbox Assist.
(a) EHR Integration and Access. Inbox Assist requires integration with Customer's EHR. Customer will provide all reasonably necessary information, credentials, interfaces, and ongoing EHR access for Inbox Assist. Without such integration and access, Inbox Assist cannot be delivered.
(b) Systems and Connectivity. Except for services CarePilot expressly provides, Customer is responsible for obtaining and maintaining all hardware, software, networking, and third‑party services required to access Inbox Assist and any related fees.
(c) Consents and Notices. Customer is responsible for providing all patient notices and obtaining all consents/authorizations required by law (including any consent to use, upload, process, store and disclose Customer Data and PHI and use audio recording where applicable, consents required of parents and/or legal guardians and coinsents to permit CarePilot and Affineon to access Customer's EHR) prior to use of Inbox Assist with a patient encounter.
(d) Scope‑of‑Practice Parameters. Customer will establish and maintain scope‑of‑practice parameters for its Authorized Users within Inbox Assist and is solely responsible for the accuracy and appropriateness of such parameters.
(e) Affiliate Terms. Each Authorized User must review and accept the Affiliate Terms prior to accessing Affineon‑powered functionality within Inbox Assist. Customer will ensure continuing compliance by its Authorized Users including compliance with any updates to the Affiliate Terms published by Affineon from time to time.
(f) Security Credentials. Each Authorized User will be assigned a unique login and password; sharing credentials is prohibited. Customer will notify CarePilot without undue delay of any suspected unauthorized access or credential compromise. Customer is solely responsible for any unauthorized access to Inbox Assist through Customer's credentials.
(g) Clinical Judgment. Customer acknowledges that clinical decision‑making remains the sole responsibility of the Authorized User. AI‑generated prompts are for informational purposes only and must not be used as a substitute for independent clinical judgment.
(h) Accuracy of Customer Data. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer‑provided data used by Inbox Assist.
(i) Affiliate Data. Customer will protect Affiliate Data as CarePilot Confidential Information pursuant to Section 6 of the Agreement.
5. Service Terms; Support; Suspension.
(a) Implementation and Training. CarePilot will facilitate implementation and training for Inbox Assist, including coordination of EHR integration steps required by Affineon. CarePilot reserves the right to charge an additional fee for implementation and training if CarePilot determines, in its reasonable discretion, that Customer's implementation and training needs exceeds that of similarly situated CarePilot customers.
(b) Support. Support for Affineon‑powered components is generally available Monday–Friday, 9:00 a.m.–5:00 p.m. Eastern Time (excluding U.S. Federal holidays). Commercially reasonable efforts will be used to respond within one (1) business day and, in any case, within three (3) business days.
(c) Suspension. In addition to CarePilot's suspension rights under the Agreement, CarePilot may suspend Inbox Assist if (i) required by Affineon; (ii) Customer's EHR access is unavailable; (iii) Customer fails to meet obligations in Section 4; or (iv) CarePilot determines that Customer's use of Inbox Assist poses a security threat to CarePilot's software or systems. CarePilot will use commercially reasonable efforts to provide prompt notice and restore service once the cause is remedied.
6. AI Outputs; Ownership; License.
Notwithstanding anything to the contrary in the Agreement: (i) as between Affineon and Customer, Affineon retains all right, title, and interest in and to the AI Outputs produced by the Affineon platform; and (ii) subject to Customer's compliance with this Addendum and the Agreement, Customer receives a non‑exclusive, royalty‑free license to use AI Outputs for Customer's internal clinical and operational purposes. For clarity, any notes, documentation, or other work product independently generated by CarePilot outside the Affineon platform remains "Output" under the Agreement and, as between CarePilot and Customer, is assigned to Customer in accordance with the Agreement. As between Affineon and Customer, all right, title and interest in the Customer Data belong to and are retained solely by Customer. Customer Data will be included in and treated as Customer's Confidential Information under this Agreement.
7. De‑Identification; Aggregation.
CarePilot and its subcontractors may de‑identify PHI in accordance with 45 C.F.R. §164.514 and use de‑identified data (including in aggregated form) to maintain, operate, and improve their services, subject to applicable law and the BAA. No rights in PHI are transferred by this Section.
8. No Medical Advice; No Practice of Medicine.
Inbox Assist, including any AI Outputs, does not constitute medical advice, diagnosis, or treatment and does not practice medicine. Authorized Users remain solely responsible for all clinical decisions and for verifying the accuracy and appropriateness of any prompts or outputs prior to use. Customer acknowledges that Inbox Assist and the AI Outputs must not be used as a substitute for the independent medical judgment of Authorized Users. Customer acknowledges that its Authorized Users are vested with ultimate clinical decision-making authority and are responsible for exercising independent medical judgment in making any and all clinical decisions relating to patient care and treatment. Any and all clinical AI-Outputs are for informational purposes only
9. Fees; Taxes.
Fees for Inbox Assist are as set forth in the Cover Sheet or other ordering documents between the Parties. All payments, taxes, and collection terms in the Agreement apply to Inbox Assist. If Customer's fees are more than thirty (30) days past due, CarePilot may suspend Inbox Assist after five (5) days' written notice.
10. Limitations of Liability and Indemnity for Inbox Assist.
In addition to, and not in lieu of, the limitations in the Agreement: (a) neither Party will be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages arising from or relating to Inbox Assist; and (b) each CarePilot and Affineon's aggregate liability arising from or relating to Inbox Assist will not exceed the lesser of (i) the amounts paid by Customer to CarePilot for Inbox Assist in the twelve (12) months preceding the event giving rise to the claim, and (ii) the aggregate liability cap stated in the Agreement. These limitations apply to the maximum extent permitted by law. Customer will indemnify, defend, and hold CarePilot and Affineon and their officers, directors, employees and agents (the "Indemnified Parties") harmless from and against any and all damages, liabilities, penalties, interest, fines, losses, costs, and expenses (including reasonable attorneys' fees and expenses) ("Losses"), arising, directly or indirectly, out of or relating to any claim, action, or proceeding (a "Claim") brought by a third party based on (a) the improper use or operation of Inbox Assist (and any third party software provided to Customer pursuant to this Agreement) by Authorized Users, Customer and/or Authorized Users, including, without limitation, any non-authorized use of Customer's user logins, except to the extent that any such Loss was due to the gross negligence or willful misconduct of CarePilot or Affineon; (b) a breach of this Addendum, the Agreement and/or the Affiliate Terms by Customer or any of its Authorized Users; (c) the accuracy, quality, integrity, legality, reliability, or appropriateness of Customer Data or any other content or data introduced to any part of Inbox Assist by any Authorized User; (iv) violation of any applicable law, rule, or regulation by Customer or any of the Authorized Users; (v) the diagnosis and/or treatment of any of Customer's patients; and/or (vi) the negligent acts or willful misconduct of Customer or its personnel.
11. Term; Termination.
This Addendum remains in effect for the Term of the Agreement unless terminated earlier as provided herein. CarePilot may terminate this Addendum (in whole or in part) on written notice if (a) Affineon ceases providing the underlying services to CarePilot; (b) integration with the EHR becomes infeasible; (c) Affineon terminates its master services agreement with CarePilot; or (d) Customer materially breaches this Addendum and fails to cure within thirty (30) days after notice (or immediately if cure is not feasible). Upon termination, Section 3 (as to PHI return/destruction via the BAA), Sections 6–10, and 12 survive.
12. Publicity; Third‑Party Rights.
CarePilot will not grant Affineon any right to use Customer's name, logo, or trademarks for publicity without Customer's prior written consent. This Addendum does not create any rights in any third party.
13. Miscellaneous.
All notices under this Addendum will be delivered in accordance with the Agreement. This Addendum may be executed by electronic signature and in counterparts. Except as expressly modified herein (solely for Inbox Assist), the Agreement and BAA remain in full force and effect.