License and Services Terms



A.                   OTTO has developed proprietary computer software and a proprietary service-based video platform, which enables physicians and patients to communicate and converse about non-emergency medical conditions.

B.                   PRACTICE desires to obtain the necessary rights in order to enable PRACTICE’s authorized users to utilize OTTO’s computer software and service-based platform to communicate and converse with patients about non-emergency medical conditions.

C.                   This Agreement also states the terms and conditions under which OTTO will:

(i)          Grant to PRACTICE the necessary rights for PRACTICE’s authorized users to access OTTO’s computer software program and utilize OTTO’s services; and

(ii)         Provide related hosting, maintenance and support, and implementation services to PRACTICE.


NOW, THEREFORE, based upon the premises set forth above and for good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.              Definitions


Capitalized terms in this Agreement have the respective meanings set forth in this Section 1, unless defined elsewhere in this Agreement.

 “Associate User” means an authorized user of the OTTO Service who is not a Provider User (including, but not limited to, Registered Nurses, Medical Assistants, Licensed Practical Nurses, Registered Dieticians, and Social Workers), each as designated by PRACTICE.

Defect” means the OTTO Service performing in a defective manner such that the OTTO Service cannot be utilized or it or the OTTO Service fails to perform in accordance with its documentation.

HIPAA” means the Health Insurance Portability and Accountability Act of 1996, and the Health Information Technology Act, Title VIII of the American Recovery and Reinvestment Act of 2009 (the ‘HITECH Act”), as the same may be amended or supplemented. 

OTTO Service” the online services provided by OTTO, which allow PRACTICE and its Users to (i) schedule patient visits for non-emergency medical conditions, (ii) conduct patient visits via audiovisual (telemedicine), and (iii) obtain such additional services including, by way of example only, email communications, which OTTO determines from time to time to include in the OTTO Service, in each case as may be further described on an Order Form.

Patient User(s)” means an individual person who accesses the OTTO Service (including without limitation online at or via OTTO mobile applications) and communicates with a PRACTICE User about such person’s non-emergency medical condition and with such PRACTICE User establishes or has a physician-patient relationship. 

Personal Information” means any information provided to OTTO during the Term by PRACTICE or a User that: (i) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers). Personal Information shall include any nonpublic personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of nonpublic personal information.  Personal Information also includes Protected Health Information.

 “PRACTICE Data” means Personal Information provided, entered or uploaded for use by or with the OTTO Service by PRACTICE or its Users.

“PRACTICE User” means any and all Provider Users and Associate Users.

Protected Health Information” or “PHI” has the meaning set forth in 45 CFR § 160.103, limited to the information that OTTO creates, receives, maintains, or transmits on behalf of PRACTICE.  All references to PHI shall also include Electronic Protected Health Information as defined in 45 CFR § 160.103. 

Provider User” means a physician and/or nurse practitioner or physician’s assistant who is an authorized user of the OTTO Service, as designated by PRACTICE.

 “SLA” means OTTO’s then-current Support and Service Level Agreement for the OTTO Service, the current version of which is set forth at [INSERT URL WHERE SUPPORT/SLA TERMS WILL BE POSTED (e.g.,].

Telehealth Encounter” means a contact between a Patient User and a PRACTICE User utilizing the OTTO Service.

Third Party Software” means software, either in object or source code format, which is not owned or licensed by OTTO, including computer operating systems, database administration systems and user applications

Users” means PRACTICE Users and Patient Users.

2.              License Grant; Method of Access by Users; No OTTO Physician Patient Relationship


a.              License Grant

. Subject to the terms and conditions of this Agreement (including without limitation Section 3.a), OTTO hereby grants to PRACTICE and PRACTICE hereby accepts a non-exclusive, non-transferable (subject to Section 16.f), non-assignable (subject to Section 16.f), license during the Term, to use and access the OTTO Service. The license and rights granted under this Agreement are granted to and for the benefit of PRACTICE only. All rights which are not expressly granted to PRACTICE herein are reserved by OTTO.

b.              Method of Access

. Users shall access the OTTO Service through either a (i) web browser (either from a computer or Android device), or (ii) the iOS Application from the Apple® mobile applications store. OTTO may offer additional methods of access from time to time. 

c.              No OTTO Physician Patient Relationship

. OTTO is not providing medical or health care services directly or indirectly to Patient Users and no physician patient relationship to which OTTO is a party is established by a User’s use of the OTTO Service. 

3.              Restrictions on Use; Certain Responsibilities of PRACTICE


a.              Restrictions on Use; Ownership

. PRACTICE will not (and will not allow any third party to): (i) utilize the OTTO Service outside of the scope of grant provided under Section 2 and will not sublicense or transfer its rights hereunder in any form to any third party; (ii) grant access to the OTTO Service to anyone other than PRACTICE Users; (iii) modify, reverse engineer, decompile, create derivative works of the OTTO Service, or disassemble, or otherwise recreate the OTTO Service or any part thereof in any form (except to the extent the foregoing restrictions are prohibited by applicable law); (iv) use the OTTO Service to build any application, product or service with is competitive with any OTTO product or service; (v) interfere or attempt to interfere with the proper working of the OTTO Service or any activities conducted on the OTTO Service; (vi) bypass any measures OTTO may use to prevent or restrict access to the OTTO Service (or other accounts, computer systems or networks connected to the OTTO Service); (vii) use the OTTO Service in a manner that violates any applicable laws or regulations; or (viii) remove any intellectual property, confidentiality or proprietary notices of OTTO which appear in any form on the OTTO Service or otherwise in any OTTO collateral or materials however reproduced. PRACTICE (a) shall use the OTTO Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Products (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the OTTO Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. As between the parties, OTTO is the sole and exclusive owner of all right, title and interest in and to the OTTO Service and all other intellectual property rights thereto, and PRACTICE will not take any action which challenges or infringes upon the foregoing ownership or rights. Notwithstanding anything else, (1) OTTO may use PRACTICE Data (a) to provide and improve the OTTO Service and prevent or address service or technical problems, (b) as compelled by law, provided OTTO gives PRACTICE prior notice of the compelled disclosure to the extent legally permitted and reasonable assistance to PRACTICE if PRACTICE wishes to contest the disclosure, (c) PRACTICE expressly permits in writing, and (d) internally to generate Aggregated De-Identified Data (as defined below), and (2) OTTO may freely use, exploit and make available Aggregated De-Identified Data.  “Aggregated De-Identified Data means data and/or information in aggregated, de-identified form that does not identify PRACTICE, or any User. 

b.              Certain Responsibilities of PRACTICE

. PRACTICE accepts sole responsibility for: (i) acquiring and configuring hardware and Third Party Software necessary to use and access the OTTO Service; (ii) the PRACTICE Data inputted in and used within the OTTO Service and otherwise in all respects; (iii) the use of the OTTO Service, including the results obtained therefrom; and (iv) all aspects of the communications and medical care between Users. PRACTICE will indemnify and hold OTTO harmless from and against any claims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) arising from or relating to subsections (ii)-(iv) of the foregoing sentence.  Without limiting the foregoing, (x) OTTO shall have no obligation to correct or in any way be responsible for a problem or Defect caused by PRACTICE’s negligent or other act or omission, PRACTICE’s equipment malfunction, or other cause beyond OTTO’s reasonable control, and (y) OTTO shall have no obligation as to or in any way be responsible for any PRACTICE User’s negligent or other act or omission. 

4.              SLA; PRACTICE’s User Accounts; Connectivity.


a.              SLA

. OTTO will provide the OTTO Service in accordance with the SLA, which is incorporated herein by this reference. 

b.              User Accounts

. PRACTICE shall be responsible for and shall maintain its own authorized User IDs and passwords which can be managed through the OTTO Service. PRACTICE shall maintain the strict confidentiality of the User IDs and passwords and shall cause their PRACTICE Users to maintain as strictly confidential their User IDs and passwords.  PRACTICE is solely responsible for all uses of and activities undertaken with User IDs.  PRACTICE shall promptly notify OTTO of any unauthorized use of User IDs of which PRACTICE becomes aware.

c.              Connectivity

. Subject to the SLA, OTTO shall maintain connectivity from its or its host’s network to the Internet capable of servicing the relevant Internet traffic to and from PRACTICE’s local area network for PRACTICE’s offices, and assist PRACTICE in connecting to the hosting environment and connecting a subset of PRACTICE’s workstations.  PRACTICE is responsible for providing connectivity to the Internet for itself and its own users and personnel. PRACTICE shall ensure that latency and available bandwidth from the PRACTICE User’s desktop to OTTO’s hosted routers is adequate to meet PRACTICE’s desired level of performance. PRACTICE is responsible for all costs associated with any specialized network connectivity required by PRACTICE.

5.              Maintenance and Support Services

.  Subject to the terms and conditions of this Agreement, during the Term OTTO shall provide the maintenance and support services set forth in the SLA (the “Maintenance and Support Services”).

6.              Implementation Services

.  Subject to the terms and conditions of this Agreement, during the Term OTTO agrees to perform all implementation services which may be set forth on an Order Form in accordance with such time schedule as mutually agreed upon by the Parties in such Order Form (“Implementation Services”).

7.              License, Support and Implementation Fees; Payments; Expenses; Taxes


a.              License, Support and Implementation Fees; Payments

.  PRACTICE shall pay OTTO the fees set forth on each Order Form. Except as may otherwise set forth on an Order Form, (i) all fees will be invoiced monthly in arrears, (ii) OTTO may invoices PRACTICE via email, and (iii) all invoices are due an payable within 30 days of the date of thereof.

b.              Expenses

.  PRACTICE is not responsible for any expenses of OTTO under this Agreement except as provided in an applicable Order Form.

c.              Taxes

. PRACTICE shall pay directly all amounts due for sales, use, excise, value-added, or other taxes or governmental charges imposed on the licensing or use of the OTTO Service, Maintenance and Support Services, and Implementation Services. In no event shall PRACTICE be obligated to pay any tax due or to be paid on OTTO’s revenues or income.

8.              Term; Termination; Termination of Access Rights; Survival


a.              Term

. This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms (the “Term”).  For each Order Form, the term of such Order Form shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of equal duration to the Initial Order Form Term (each, a “Renewal Order Form Term”, and together with the Initial Order Form Term, the “Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term (as applicable).

b.              Termination

.  This Agreement may be terminated (i) by either Party in the event that the other Party breaches its representations, warranties or obligations under this Agreement and such breach is not cured within thirty (30) days after written notice of such breach is provided by the non-breaching Party; or (ii) by OTTO in the event that PRACTICE breaches its obligations under Section 3(a) and does not cure such breach within ten (10) days after receiving written notice of such breach from OTTO.

c.              Termination of Access and Maintenance and Support Services

.  Promptly after the expiration or termination of this Agreement for any reason, OTTO shall cease providing access to the OTTO Service and cease Maintenance and Support Services, and PRACTICE shall cease use of the OTTO Service directly and by its PRACTICE Users.  At OTTO’s request, PRACTICE shall deliver to OTTO an officer certification as to PRACTICE’s compliance with this Section 8(c).

d.              Disposition of Protected Health Information

.  Upon expiration or termination of this Agreement for any reason, OTTO shall take the necessary steps to either (i) destroy, or (ii) deliver to PRACTICE the Protected Health Information in accordance with the Business Associate Agreement between the Parties.

e.              Survival

. The following provisions herein shall survive any expiration or termination of this Agreement: 1, 3, 7, 8(b) – 8(e), 10, 11(d), and 12 through 16 inclusive.

9.              Business Associate Agreement

. OTTO and PRACTICE will be parties to the Business Associate Agreement set forth at [INSERT URL TO STANDARD BAA (e.g.,] (the “Business Associate Agreement”), which is incorporated herein by this reference and which includes, among other things, provisions regarding Protected Health Information, security of the OTTO Service, and incident response. 

10.           Representations and Warranties of the Parties

.  Each Party represents and warrants to the other Party that (i) such Party has obtained all necessary corporate authorizations to execute, deliver and perform this Agreement, and (ii) the execution, delivery and performance of this Agreement does not violate or conflict with any agreement to which such Party is a party or obligation to which such Party is subject.

11.           OTTO’s Representations and Warranties

.  OTTO makes the following representations and warranties to PRACTICE:

a.              Compliance with Laws

. The OTTO Service complies with the Security Standards for the Protection of Electronic Health Information (the HIPAA Security Rule) as set forth in 45 C.F.R. Part 160 and Subparts A and C of Part 164, and will maintain such compliance during the Term.  OTTO periodically conducts an internal audit utilizing the Office for Civil Rights HIPAA Audit program protocol at http://www.hhsgov/ocr/privacy/hipaa/ enforcement/audit/protocol.html, as amended from time to time, that analyzes OTTO’s processes, controls and policies for compliance with HIPAA. OTTO represents and warrants that it will (i) comply with applicable Federal laws and regulations applicable to the privacy and security of PRACTICE Data; and (ii) be responsible for the performance of OTTO’s personnel (including employees, service providers and contractors) compliance with this Agreement.. 

b.              Express Disclaimer as to State Law on Telemedicine

. Notwithstanding any representations, warranties or covenants of OTTO in this Agreement, OTTO is not responsible for compliance with any restrictions or requirements of any state laws regulating or pertaining to PRACTICE Users utilizing the OTTO Service to treat Patient Users utilizing telemedicine technology, treatment or methods.  PRACTICE acknowledges and agrees that PRACTICE is solely responsible for such compliance. 

c.              Disclaimer

The foregoing limited warranties are in lieu of all other warranties, are made for the benefit of PRACTICE only, and are expressly subject to the applicable provisions hereof.  Except as provided in this Section 11, the Parties acknowledge and agree that the OTTO Service is provided “AS IS” and OTTO makes none and hereby disclaims all other warranties, representations or conditions, whether written or oral, or express, implied, or statutory, with respect to the subject matter hereof, including any implied warranties of merchantability, data integrity, quiet enjoyment, or fitness for a particular use or purpose, with respect to the OTTO Service, the Maintenance and Support Services, the Implementation Services and otherwise.  OTTO does not warrant that all errors can be corrected or that operation of the OTTO Service shall be uninterrupted or error free.


12.           Indemnification

. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to (i) in the case of OTTO as Indemnitor, any claim that the OTTO Service  infringes, violates, or misappropriates any third party intellectual property or proprietary right, and (ii) in the case of PRACTICE as Indemnitor, the PRACTICE Data, PRACTICE’s use of the OTTO Service, PRACTICE’s breach of this Agreement, or any claim of a User.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (b) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (c) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of OTTO do not apply with respect to the OTTO Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by OTTO (including without limitation any PRACTICE Data), (2) made in whole or in part in accordance to PRACTICE specifications, (3) modified after delivery by OTTO, (4) combined with other products, processes or materials not provided by OTTO (where the alleged Losses arise from or relate to such combination), (5) where PRACTICE continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (6) PRACTICE’s use of the OTTO Service is not strictly in accordance herewith.  In addition, in the event such an infringement is determined and OTTO cannot either procure the right to its continued provision of the OTTO Service, or replace or modify the OTTO Service so that the same no longer infringes upon the rights of such third party, OTTO shall be authorized to terminate this Agreement.  In the event of such termination, OTTO will refund to PRACTICE the full amount of the annual License Fee paid for the year during which such infringement claim arose, less one-twelfth (1/12) for each full month of such year during which PRACTICE Indemnitees are able to utilize the OTTO Service.

13.           Limitations of Liability; Exclusions


14.           Non-Solicitation


During the Term and for a period of one (1) year following this Agreement’s expiration or termination, without the express prior written consent of OTTO, PRACTICE will not directly or indirectly solicit for employment or as a consultant, an employee or consultant of OTTO, or any person who was an employee or consultant of OTTO at any time during the twelve (12) month period immediately prior to the date such employee or consultant is solicited, hired or retained. Notwithstanding the foregoing, PRACTICE shall not be precluded from (i) hiring an employee of OTTO who independently approaches PRACTICE, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. In the event of a violation of this provision (but without limiting any remedy otherwise available to OTTO), PRACTICE shall make a one-time payment in the amount of twenty-five percent (25%) of the employee’s or consultant’s most recent base salary.

15.           Force Majeure


Neither Party will be responsible for delays or failures in performance resulting from acts or events beyond its reasonable control, including but not limited to, acts of nature, governmental actions, acts of terrorism, fire, civil disturbances, interruptions of power supply or communications or natural disasters, provided such Party takes reasonable efforts to minimize the effect of such acts or events and resumes performance when the impediment in question is abated.  This provision will not apply to or impact a Party’s payment obligations under this Agreement.

16.           General Provisions


a.              Governing Law; Jurisdiction

.  This Agreement will be governed by and construed in accordance with Colorado law as applied to transactions wholly occurring within such state between residents of such state without giving effect to the conflict of law rules thereof, and any mediation, arbitration or litigation between the Parties arising hereunder shall be conducted or tried before the court or alternative dispute resolution tribunal having proper subject matter jurisdiction, as the case may be, solely in Denver, Colorado.

b.              Entire Agreement

.  This Agreement (including all Order Forms and all documents incorporated by reference herein) and the Exhibits attached hereto contain the entire understanding of the Parties with respect to the subject matter hereof. In the event of any conflict between this Agreement and any Order Form, the Order Form shall control. There are no promises, covenants or undertakings contained in any other writing or oral communication.

c.              Amendment

.  This Agreement may not be amended except in a writing signed by authorized representatives of the Parties.

d.              Notices

.  Any notices required or permitted to be sent hereunder will be in writing and will be sent Certified Mail, Return Receipt Requested, or by a recognized overnight courier. Notices will be sent to the addresses set forth on the applicable Order Form or to such other address as a Party may designate by notice pursuant hereto.

e.              Waiver

.  A waiver of a breach or default under this Agreement will not be a waiver of any subsequent breach or default. Failure of either Party to enforce compliance with any term or condition of this Agreement will not constitute a waiver of such term or condition.

f.               Assignment

.  Neither this Agreement nor any right or obligation hereunder shall be assigned or delegated, in whole or part, by PRACTICE without the prior express written consent of OTTO which shall not be unreasonably withheld. Any permitted assignee shall assume in writing all assigned obligations of its assignor under this Agreement.  OTTO may assign its rights and obligations under this Agreement without consent to an entity which acquires substantially all of OTTO’s business or assets or to a joint venture or partnership in which OTTO is a member.  Any purported assignment in violation of this section shall be void and of no effect.

g.              Publicity

. PRACTICE authorizes OTTO to identify PRACTICE as a client, and to use PRACTICE’s name and logo in OTTO’s advertising copy, promotional material or press releases.  Promptly after the Effective Date PRACTICE agrees to work with OTTO to prepare and release a mutually acceptable press release announcing in general terms this Agreement and the commercial relationship of the Parties.

h.              Equitable Relief

. The breach of this Agreement and in particular the provisions concerning the intellectual property ownership rights of OTTO, may result in irreparable injury and the Party who claims such a breach will be entitled to seek specific performance and injunctive relief to correct and enjoin such breach in addition to all other remedies which are available to such Party.

i.               Dispute Resolution

. In the event of any dispute between the Parties arising out of or relating to this Agreement, exclusive of any claim of OTTO seeking specific performance or injunctive relief as to the enforcement of the intellectual property ownership rights of OTTO, the Parties shall first attempt to resolve their dispute through good-faith negotiations between senior officials of each Party.

If such good faith negotiations are unsuccessful, the Parties shall mediate their dispute in a non-binding mediation under the then-current Commercial Mediation Procedures of the American Arbitration Association (AAA).  The Parties’ efforts to reach a settlement with the mediator’s assistance will continue until: (i) the parties execute a written settlement; (ii) the mediator concludes and informs the Parties in writing that further efforts would not be useful; or (iii) the Parties agree in writing that an impasse has been reached.  Neither party may withdraw from the mediation before its conclusion. Each party shall bear its own expenses except that the costs of the mediator and filing fees with the AAA shall be split equally between the parties.

The mediation shall be conducted by a single mediator who shall have not less than ten (10) years of experience in the area of healthcare software and technology contracting and/or adjudicating or mediating disputes as to healthcare software and technology contracting, and who shall be mutually selected by the parties.

The Parties regard this obligation to mediate as an essential provision of this Agreement, and they accept that obligation as legally binding. If either Party refuses to participate in mediation, the other may bring an action to seek enforcement of the obligation in any court having jurisdiction over the parties.

Notwithstanding anything to the contrary contained in this Agreement, in the event of a litigated dispute between the Parties as to OTTO’s intellectual property ownership rights in the OTTO Service, if OTTO is the prevailing Party in such dispute it shall be entitled to recover its reasonable attorney’s fees and costs.

j.               Severability

. If any provision of this Agreement is found to be invalid, illegal or unenforceable under any applicable statute or law, it is to that extent deemed to be omitted and the remaining provisions of this Agreement will not be affected in any way.

k.              No Third Party Beneficiaries

. There are no third party beneficiaries of this Agreement, including without limitation Users.

l.               Execution

. This Agreement may be executed in two or more original, faxed or .pdf counterparts, all of which when taken together shall constitute a binding instrument on the Parties.

m.            Headings

. The headings of the paragraphs and sections of this Agreement are for convenience only and will not control or affect the meaning or construction of any provision of this Agreement.

n.              Exclusivity

. PRACTICE will not use any other telehealth solution after a thirty (30) day transition for the duration of this Agreement.