Version 1

Effective Date: 4/1/2020

Last Updated Date: 4/1/2020

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY.  THIS SOFTWARE AS A SERVICE PLATFORM, MADE AVAILABLE BY TREKIT HEALTH, INC, d./b./a. CareAlign (“CareAlign”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “PLATFORM”) AND THE INFORMATION ON IT ARE CONTROLLED BY CAREALIGN.  THESE TERMS OF USE GOVERN THE USE OF THE PLATFORM AND APPLY TO ALL INTERNET USERS VISITING THE PLATFORM BY ACCESS OR USING THE PLATFORM IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE PLATFORM AND/OR PLATFORM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CAREALIGN, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF CAREALIGN YOU HAVE NAMED AS THE USER, AND TO BIND THAT CAREALIGN TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL PROVIDER (AS DEFINED BELOW) ACCESSING AND USING THE SERVICES AND IF AN INDIVIDUAL IS CREATING THE INITIAL ACCOUNT ON BEHALF OF A CUSTOMER (AS DEFINED BELOW), THAT CUSTOMER IS ALSO BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS PLATFORM OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY CAREALIGN IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, CareAlign will make a new copy of the Terms of Use available at the Platform and any new Supplemental Terms will be made available from within, or through, the affected Service on the Platform.  We will also update the “Last Updated” date at the top of the Terms of Use.  If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement.  Any changes to the Agreement will be effective immediately for new users of the Platform and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Platform for existing users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Platform or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 below).  CareAlign may require you to provide consent to the updated Agreement in a specified manner before further use of the Platform and/ or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Platform, the Application and/or the Services.  Otherwise, your continued use of the Platform and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.

DESCRIPTION OF THE SERVICES. CareAlign provides clinicians with an intuitive, patient-centric task management tool to track, manage and coordinate clinical care. Our Services allow you to create communication channels to interact with patient-care team(s) and colleague(s). Hospitals, health systems, and other organizations or entities that create an account, through either a free, beta or a subscription plan (“Customers”) have certain rights and responsibilities, as described in this Agreement and/or that certain other master services agreement entered into between CareAlign and such Customer (“MSA”).  In the event of a conflict between this Agreement and the MSA, the terms and conditions of the MSA governs, but only to the extent of the conflict. Customers can invite individual healthcare providers or other employees to collaborate in their account (“Providers”). Providers can use our Services through the account authorized by Customer. By using the Services, Providers can share content or data that may or may not relate to patient health information, including information, data, text, photographs, graphics, video, messages, tags, macros, and/or other materials accessible through CareAlign Properties (“Customer Content”).

CareAlign offers the Services through free and paid subscriptions plans. Free plans are the basic plan, which may not include all the features and privileges offered in the paid subscription plans. Providers may only access the Services through authorization from a Customer.  The MSA may place restrictions on the number and/or type of Providers who may access Customer’s account.

Customer Responsibilities. Customer and Provider acknowledge and agree that Customer is solely responsible for: (i) providing authorizing to and removing from its account any Providers; (ii) the configuration of each account, including its settings (including but not limited to access to the Services, third party integrations, permissions, consolidation of an account with others, transfer accounts, retention and export settings); (iii) managing Customer Content, including providing instructions to CareAlign on how to handle such Customer Content in each account; (iv) informing Providers of policies and practices associated with their use of the Services and the settings used in association with the processing of Customer Content; (v) ensuring that the transfer and processing of Customer Content under this Agreement is lawful; (vi) complying with the terms of this Agreement and ensuring that its Providers comply with the Agreement; (vii) guaranteeing that all Providers are over 18 years old; and (viii) providing high speed internet for itself and its Providers to access and use the Services. Further, Customer is solely responsible for (1) identifying whether and how HIPAA (as defined in Section 1.4 below) applies to Customer; (2) providing any notices of Customer’s privacy practices that may be required by HIPAA; and (3) identifying and responding to patient requests to exercise rights to access, delete, or opt out of the sale of personal information or marketing communications under applicable laws.

CareAlign Responsibilities. CareAlign will make the Services available to Customer as described in this Agreement and the MSA, and Customer may invite Providers to use our Services.

Joint Responsibilities.

As part of the Services, CareAlign may perform or assist in performing a function or activity on Customer’s behalf that may involve the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”). The parties hereto shall use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (the “HITECH Act”). Capitalized terms used but not otherwise defined in this Section 1.4 shall have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.

To the extent that CareAlign process PHI on Customer’s behalf as part of the Services in connection with and by agreeing to this Agreement, Customer and CareAlign agree to be bound by the terms of a Business Associate Agreement, the terms of which may be referenced in the MSA, which if existing, is incorporated herein by reference. Customer (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agrees that it has read and agrees to be bound by the terms of the Business Associate Agreement. CareAlign (the “Business Associate,” as referred to in the Business Associate Agreement), agrees to be bound by the terms of the Business Associate Agreement. The parties hereto each agree to perform their respective obligations as enumerated therein.

USE OF THE SERVICES AND CAREALIGN PROPERTIES. The Platform, the Services, and the information and content made available by CareAlign on the Platform and the Services (as these terms are defined herein) (each, a “CareAlign Property” and collectively, the “CareAlign Properties”) are protected by copyright laws throughout the world.  Subject to the Agreement, CareAlign grants you a limited license to reproduce portions of CareAlign Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by CareAlign in a separate license, your right to use any and all CareAlign Properties is subject to the Agreement.

Updates. You understand that CareAlign Properties are evolving.  As a result, CareAlign may require you to accept updates to CareAlign Properties that you have installed on your computer or mobile device.  You acknowledge and agree that CareAlign may update CareAlign Properties with or without notifying you.  You may need to update third-party software from time to time in order to use CareAlign Properties.

Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit CareAlign Properties or any portion of CareAlign Properties, including the Platform; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of CareAlign Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (d) you shall not access CareAlign Properties in order to build a similar or competitive website, application or service; (e) except as expressly stated herein, no part of CareAlign Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in CareAlign Properties. Any future release, update or other addition to CareAlign Properties shall be subject to the Agreement.  CareAlign, its suppliers and service providers reserve all rights not granted in the Agreement.  Any unauthorized use of any CareAlign Property terminates the licenses granted by CareAlign pursuant to the Agreement.

Third-Party Materials. As a part of CareAlign Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for CareAlign to monitor such materials and that you access these materials at your own risk.

Registering Your Account. In order to access certain features of CareAlign Properties you will be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Platform (“Account”).

Registration Data. In registering an account on the Platform, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using CareAlign Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You may not share your Account or password with anyone, and you agree to (y) notify CareAlign immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or CareAlign has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, CareAlign has the right to suspend or terminate your Account and refuse any and all current or future use of CareAlign Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  You agree not to create an Account or use CareAlign Properties if you have been previously removed by CareAlign, or if you have been previously banned from any of CareAlign Properties.

Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of CareAlign.

RESPONSIBILITY FOR CONTENT.

Content. You acknowledge that any information, data, text, software, photographs, graphics, video, messages, tags, macros and/or other materials accessible through CareAlign Properties (collectively, “Content”), including CareAlign Properties, is the sole responsibility of the party from whom such Content originated. Provider and Customer, and not CareAlign, are entirely responsible for that Content that Provider or Customer, respectively, upload, post, e-mail, transmit or otherwise make available (“Make Available”) through CareAlign Properties.

No Obligation to Pre-Screen Content. You acknowledge that CareAlign has no obligation to pre-screen Content, although CareAlign reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Content you submit, including without limitation chat communications.  In the event that CareAlign pre-screens, refuses or removes any Content, you acknowledge that CareAlign will do so for CareAlign’s benefit, not yours.  Without limiting the foregoing, CareAlign shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.

OWNERSHIP.

CareAlign Properties. Except with respect to Customer Content, you agree that CareAlign and its suppliers own all rights, title and interest in CareAlign Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any CareAlign Properties.

Trademarks. and all related graphics, logos, service marks and trade names used on or in connection with any CareAlign Properties or in connection with the Services are the trademarks of CareAlign and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in CareAlign Properties are the property of their respective owners.

Other Content. Except with respect to Customer Content owned by Customer, you agree that you have no right, title, or interest in or to any Content that appears on or in CareAlign Properties.

Customer Content. CareAlign does not claim ownership of Customer Content. Provider acknowledges and agrees that, as between CareAlign, Customer, and Provider, Customer owns the Customer Content and the Agreement. Customer represents that Providers will have unconditionally and irrevocably assigned all of their right, title, and interest in and to the Customer Content (and all intellectual property rights thereto) to Customer, or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display Customer Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Customer Content.

License to Customer Content. Subject to any applicable account settings that Customer selects, Customer grants CareAlign a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Customer Content (in whole or in part) for the purposes of operating and providing CareAlign Properties to Customer and Providers.

Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to CareAlign through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that CareAlign has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to CareAlign a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of CareAlign Properties and/or CareAlign’s business. To the extent that your Feedback contains PHI, CareAlign agrees not further use or disclosure such PHI unless otherwise permitted under the Business Associate Agreement.

PROVIDER CONDUCT. As a condition of your use of the CareAlign Properties, you agree not to use CareAlign Properties for any purpose that is prohibited by the Terms or by applicable law. In addition to the policies set forth by Customer, Provider shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through CareAlign Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of privacy, right of publicity, or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) impersonates any person or entity, including any employee or representative of CareAlign; (iv) violates applicable laws, rules, and regulations to which Customer and/or Provider are subject; (v) interferes with or attempt to interfere with the proper functioning of CareAlign Properties or uses CareAlign Properties in any way not expressly permitted by the Agreement; or (vi) attempts to engage in or engage in, any potentially harmful acts that are directed against CareAlign Properties, including but not limited to violating or attempting to violate any security features of CareAlign Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in CareAlign Properties, introducing viruses, worms, or similar harmful code into CareAlign Properties, or interfering or attempting to interfere with use of CareAlign Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” CareAlign Properties.

INVESTIGATIONS. CareAlign may, but is not obligated to, monitor or review CareAlign Properties and Content at any time.  Without limiting the foregoing, CareAlign shall have the right, in its sole discretion, to remove any of Content shared by you for any reason (or no reason), including if such Content violates the Agreement or any applicable law.  Although CareAlign does not generally monitor user activity occurring in connection with CareAlign Properties or Content, if CareAlign becomes aware of any possible violations by you of any provision of the Agreement, CareAlign reserves the right to investigate such violations, and CareAlign may, at its sole discretion, immediately terminate your license to use CareAlign Properties, or change, alter or remove such Content, in whole or in part, without prior notice to you.

INTERACTIONS WITH OTHER USERS.

User Responsibility. You are solely responsible for your interactions with other Providers and any other users or parties with whom you interact; provided, however, that CareAlign reserves the right, but has no obligation, to intercede in such disputes.  You agree that CareAlign will not be responsible for any liability incurred as the result of such interactions.

Content Provided by Other Users. CareAlign Properties may contain Content provided by other users.  CareAlign is not responsible for and does not control such user Content.  CareAlign has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to user content.  You use all user Content and interact with other users at your own risk.

THIRD-PARTY SERVICES. CareAlign Properties may contain links to or allow integrations with third-party websites and/or services, including electronic health records systems (“Third-Party Services”).  When you click on a link to or otherwise access a Third-Party Service, we will not warn you that you have left CareAlign Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Services are not under the control of CareAlign.  CareAlign is not responsible for any Third-Party Services.  CareAlign provides these Third-Party Services as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith.  You access and use any Third-Party Services at your own risk. When you leave our Services, the Agreement and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

FEES AND PURCHASE TERMS.

General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for Customer to secure access to the Services.  All fees set forth within and paid by Customer under the Agreement and/or the MSA shall be considered solely in furtherance of this purpose.  In no way are these fees paid considered payment for the sale, license, or use of CareAlign’s Software, and, furthermore, any use of CareAlign’s software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.

Payment. Customer agrees to pay all fees or charges to Customer’s Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable or as specified in the MSA.  Customer must provide CareAlign with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) as a condition to signing up for a subscription to the Services or otherwise accessing any Service requiring payment.  Customer’s Payment Provider agreement governs your use of the designated credit card or PayPal account, and Customer must refer to that agreement and not the Agreement to determine your rights and liabilities.  By providing CareAlign with Customer’s credit card number or PayPal account and associated payment information, Customer agree that CareAlign is authorized to immediately invoice Customer’s Account for all fees and charges due and payable to CareAlign hereunder and that no additional notice or consent is required.  Customer agree to immediately notify CareAlign of any change in your billing address or the credit card or PayPal account used for payment hereunder.  CareAlign reserves the right at any time to change its prices and billing methods, either immediately upon posting on CareAlign Properties or by e-mail delivery to Customer.

Service Subscription Fees. Customer will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your annual package (each, a “Service Commencement Date”).  Except as set forth in the Agreement, all fees for the Services are non-refundable.  No contract will exist between Customer and CareAlign for the Services until CareAlign accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

Taxes. The payments required under Section 10.3 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement.  If CareAlign determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, CareAlign shall collect such Sales Tax in addition to the payments required under Section 10.3 of this Agreement.  If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to CareAlign, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify CareAlign for any liability or expense CareAlign may incur in connection with such Sales Taxes.  Upon CareAlign’s request, Customer will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

Withholding Taxes. Customer agrees to make all payments of fees to CareAlign free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments of fees to CareAlign will be Customer’s sole responsibility, and Customer will provide CareAlign with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

Automatic Renewal. Customer’s subscription will continue indefinitely until terminated in accordance with the Agreement.  After the initial subscription period, and again after any subsequent subscription period, Customer’s subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at CareAlign’s then-current price for such subscription.  Customer agree that his/her Account will be subject to this automatic renewal feature unless Customer cancels the subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that Customer receives a notice from CareAlign that the subscription will be automatically renewed, Customer will have thirty days from the date of the CareAlign notice), by logging into and going to the “Change/Cancel Membership” page of Customer’s “Account Settings” page.  To stop automatic renewals or to change or terminate the subscription, please contact CareAlign at help@carealign.ai. Customers that cancel the subscription may use the subscription until the end of your then-current subscription term; and such subscription will not be renewed after the then-current term expires.  However, Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  By subscribing, Customer authorizes CareAlign to charge Customer’s Payment Provider now, and again at the beginning of any subsequent subscription period.  Upon renewal of the subscription, if CareAlign does not receive payment from Customer’s Payment Provider, (a) Customer agrees to pay all amounts due on his Account upon demand and/or (b) Customer agrees that CareAlign may either terminate or suspend his subscription and continue to attempt to charge Customer’s Payment Provider until payment is received (upon receipt of payment, Customer’s Account will be activated and for purposes of automatic renewal, Customer’s new subscription commitment period will begin as of the day payment was received).

Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial.  At the end of the trial period, Customer’s use of that Service will expire and any further use of the Service is prohibited unless Customer pays the applicable subscription fee.  If Customer is inadvertently charged for a subscription, please contact CareAlign to have the charges reversed.

Disputes. Unless otherwise provided by the applicable payment processor or payment platform used in connection with Customer’s payment for Services, Customer must notify us in writing within seven (7) days after receiving Customer’s credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes shall be directed to Subha@carealign.ai

 

INDEMNIFICATION. Customer agrees to indemnify and hold CareAlign, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “CareAlign Party” and collectively, the “CareAlign Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Customer Content; (b) Customer’s or its Providers’ use of, or inability to use, any CareAlign Property; (c) Customer’s or its Providers’ violation of the Agreement; (d) Customer’s or its Providers’ violation of any rights of another party, including any users; or (e) Customer’s or its Providers’ violation of any applicable laws, rules or regulations, including HIPAA, The Privacy Rule, The Security Rule, and/or the HITECH Act.  CareAlign reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will fully cooperate with CareAlign in asserting any available defenses.  This provision does not require Customer to indemnify any of the CareAlign Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. Customer agrees that the provisions in this section will survive any termination of Customer’s Account, the Agreement and/or Customer’s or any of its Provider’s access to CareAlign Properties.

DISCLAIMER OF WARRANTIES AND CONDITIONS.

As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF CAREALIGN PROPERTIES IS AT YOUR SOLE RISK, AND CAREALIGN PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CAREALIGN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

CAREALIGN PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) CAREALIGN PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF CAREALIGN PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF CAREALIGN PROPERTIES WILL BE ACCURATE OR RELIABLE.

ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH CAREALIGN PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS CAREALIGN PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CAREALIGN MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CAREALIGN OR THROUGH CAREALIGN PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

FROM TIME TO TIME, CAREALIGN MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CAREALIGN’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

No Medical Advice. YOU ACKNOWLEDGE THAT THE INFORMATION ON THE PLATFORM AND PROVIDED THROUGH THE SERVICES IS PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY. IT IS NOT INTENDED AS MEDICAL ADVICE OF ANY KIND. CAREALIGN DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, COURSE OF TREATMENT, PHYSICIANS OR OTHER HEALTHCARE PROVIDERS OR PROFESSIONALS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED IN OUR SERVICES. RELIANCE ON ANY INFORMATION PROVIDED OR MADE AVAILABLE BY CAREALIGN ON THE SERVICES, OR PROVIDED OR MADE AVAILABLE BY OTHER PROVIDERS OR USERS OF THE SERVICES IS SOLELY AT YOUR OWN RISK.

No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT CAREALIGN PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CAREALIGN PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF CAREALIGN PROPERTIES. YOU UNDERSTAND THAT CAREALIGN DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF CAREALIGN PROPERTIES.

LIMITATION OF LIABILITY.

Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CAREALIGN PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CAREALIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF CAREALIGN PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE CAREALIGN PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH CAREALIGN PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON CAREALIGN PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO CAREALIGN PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CAREALIGN PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A CAREALIGN PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A CAREALIGN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

Cap on Liability. UNDER NO CIRCUMSTANCES WILL CAREALIGN PARTIES BE LIABLE TO (1) COSTUMER FOR MORE THAN THE TOTAL AMOUNT PAID TO CAREALIGN BY CUSTOMER DURING THE TWELVE-MONTHS PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR SUCH OTHER LIABILITY CAP SET FORTH IN THE MSA, IF LOWER; OR (2) TO PROVIDER FOR MORE THAN ONE-HUNDRED DOLLARS ($100) IN AGGREGATE FOR ANY BREACH UNDER THESE TERMS. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CAREALIGN PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A CAREALIGN PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A CAREALIGN PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

User Content. EXCEPT FOR CAREALIGN’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE CAREALIGN’S PRIVACY POLICY, CAREALIGN ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAREALIGN AND YOU.

PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is CareAlign’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to CareAlign by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on CareAlign Properties in a way that constitutes copyright infringement, please provide our copyright agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on CareAlign Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for CareAlign’s Copyright Agent for notice of claims of copyright infringement is as follows:

TERM AND TERMINATION.

Term. For Providers, the term remain in effect until (a) Customer’s subscription expires or terminates under this Agreement or the MSA; or (b) Customer or Provider terminates Provider’s access to the Services. For Customers under a free plan, this Agreement continues until terminated. For Customers under a paid subscription plan, this Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated, or the Agreement terminates. Termination of the Agreement will terminate all paid subscriptions and all Order Forms.

Termination for Cause. Either CareAlign or Customer may terminate this Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Providers, including for any breaches of this Agreement caused by its Providers. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that (a) the Services are being used by Customer or its Providers in violation of applicable law, or (b) if CareAlign is required to do so by law (e.g., where the provision of the Platform, the Application, or the Services is, or becomes, unlawful).

Termination for convenience. If you want to terminate the Services provided by CareAlign, you may do so by (a) notifying CareAlign at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to CareAlign’s address set forth below.  THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS CUSTOMER CANCELS THE SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 10.6. CareAlign may also terminate Customer’s free subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.

Effect of Termination. Except as provided herein, subscription fee for any Service shall be non-refundable Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Customer Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Customer Content associated therewith from our live databases.  CareAlign will not have any liability whatsoever to you for any suspension or termination, including for deletion of Customer Content.  All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

No Subsequent Registration. If your registration(s) with or ability to access CareAlign Properties, or any other CareAlign community is discontinued by CareAlign due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access CareAlign Properties or any CareAlign community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those CareAlign Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, CareAlign reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

INTERNATIONAL USERS. CareAlign Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that CareAlign intends to announce such Services or Content in your country.  CareAlign Properties are controlled and offered by CareAlign from its facilities in the United States of America. CareAlign makes no representations that CareAlign Properties are appropriate or available for use in other locations.  Those who access or use CareAlign Properties from other countries do so at their own volition and are responsible for compliance with local law.

DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with CareAlign and limits the manner in which you can seek relief from us.

Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Platform, to any products sold or distributed through the Platform, or to any aspect of your relationship with CareAlign, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or CareAlign may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [include name and address of registered agent here].  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/ all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, CareAlign will pay them for you.  In addition, CareAlign will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and CareAlign.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

Waiver of Jury Trial. YOU AND CAREALIGN HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and CareAlign are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS< AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS.  ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the Commonwealth of Pennsylvania.  All other disputes, claims, or requests for relief shall be arbitrated.

30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to help@carealign.ai within 30 days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, your CareAlign username (if any), the email address you used to set up your CareAlign account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

Severability. Except as provided in subsection 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with CareAlign.

Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if CareAlign makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing CareAlign at the following address: ________________________.

GENERAL PROVISIONS.

Electronic Communications. The communications between you and CareAlign may take place via electronic means, whether you visit CareAlign Properties or send CareAlign e-mails, or whether CareAlign posts notices on CareAlign Properties or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from CareAlign in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that CareAlign provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

Release. You hereby release CareAlign Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of CareAlign Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of CareAlign Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a CareAlign Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder.

Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without CareAlign’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Force Majeure. CareAlign shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to CareAlign Properties, please contact us at help@carealign.ai.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and CareAlign agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Philadelphia, Pennsylvania.

Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.

Notice. Where CareAlign requires that you provide an e-mail address, you are responsible for providing CareAlign with your most current e-mail address.  In the event that the last e-mail address you provided to CareAlign is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, CareAlign’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to CareAlign at the following address: 1 Righter parkway,  suite 260, Wilmington, DE 19083. Such notice shall be deemed given when received by CareAlign by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

Export Control. You may not use, export, import, or transfer CareAlign Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained CareAlign Properties, and any other applicable laws.  In particular, but without limitation, CareAlign Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using CareAlign Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use CareAlign Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by CareAlign are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer CareAlign products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

 

BUSINESS ASSOCIATE AGREEMENT
This BUSINESS ASSOCIATE AGREEMENT (the “BA Agreement”) is incorporated by reference into and made a part of the TrekIT Health Terms of Use, and is entered into by and between TrekIT Health, Inc. d./b./a. CareAlign (“CareAlign” or “we” or “Business Associate”) and the applicable healthcare provider that has agreed to the Terms of Use (“Provider”); provided, however, that the terms of this BA Agreement apply only if and solely to the extent that CareAlign receives, creates, maintains, or transmits Protected Health Information relating to patients of Provider in connection with the Covered Services (defined below) that CareAlign, as a Business Associate, performs for or on behalf of Provider, as a Covered Entity. CareAlign, in its capacity as a Business Associate is referred to herein as “Business Associate”, and Provider, in his/her/its capacity as a Covered Entity, is referred to herein as “Covered Entity.” This agreement is entered into on the date Provider agrees to the CareAlign Terms of Use for the purposes of complying with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder (“HIPAA”) and the security provisions of the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”).

WITNESSETH
WHEREAS, Covered Entity is a covered entity as such term is defined under HIPAA and as such is required to comply with the requirements thereof regarding the confidentiality and privacy of Protected Health Information; and
WHEREAS, Business Associate has entered or may enter into an agreement or agreements with Covered Entity (“Service Agreement”), pursuant to which Business Associate may create and/or receive Protected Health Information for or on behalf of Covered Entity; and
WHEREAS, by providing services pursuant to the Service Agreement and creating and/or receiving Protected Health Information for or on behalf of Covered Entity, Business Associate shall become a business associate of Covered Entity, as such term is defined under HIPAA, and will therefore have obligations regarding the confidentiality and privacy of Protected Health Information that Business Associate creates for, or receives from or on behalf of, Covered Entity.

NOW THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, the parties hereto agree as follows:

1. DEFINITIONS. For the purposes of this Agreement, capitalized terms shall have the meanings ascribed to them below. All capitalized terms used but not otherwise defined herein will have the meaning ascribed to them by HIPAA.
   1. “Protected Health Information” or “PHI” is any information, whether oral or recorded in any form or medium that is created, received, maintained, or transmitted by Business Associate for or on behalf of Covered Entity, that identifies an individual or might reasonably be used to identify an individual and relates to: (i) the individual’s past, present or future physical or mental health; (ii) the provision of health care to the individual; or (iii) the past, present or future payment for health care.
      2. “Secretary” shall refer to the Secretary of the U.S. Department of Health and Human Services.
      3. “Unsecured PHI” shall mean PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary (e.g., encryption). This definition applies to both hard copy PHI and electronic PHI.
2. OBLIGATIONS OF BUSINESS ASSOCIATE.
   1. Use and Disclosure of PHI.
      1. Business Associate warrants that it, its agents and its subcontractors: (a) shall use or disclose PHI only in connection with fulfilling its duties and obligations under this Agreement and the Service Agreement; (b) shall not use or disclose PHI other than as permitted or required by this Agreement or required by law; (c) shall not use or disclose PHI in any manner that violates applicable federal and state laws or would violate such laws if used or disclosed in such manner by Covered Entity; and (d) shall only use and disclose the minimum necessary PHI for its specific purposes.
      2. Subject to the restrictions set forth throughout this Agreement, Business Associate may use the information received from Covered Entity if necessary for (a) the proper management and administration of Business Associate; or (b) to carry out the legal responsibilities of Business Associate.
      3. Subject to the restrictions set forth in throughout this Agreement, Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that:
         1. Disclosures are required by law, or
         2. Business Associate obtains reasonable assurances from the person or entity to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person or entity, and the person or entity notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
      4. Business Associate is permitted, for Data Aggregation purposes to the extent permitted under HIPAA, to use, disclose, and combine PHI created or received on behalf of Covered Entity by Business Associate pursuant to this Agreement with PHI, as defined by 45 C.F.R. 160.103, received by Business Associate in its capacity as a business associate of other covered entities, to permit data analyses that relate to the Health Care Operations of the respective covered entities and/or Covered Entity.
      5. Business Associate may de-identify any and all PHI created or received by Business Associate under this Agreement. Once PHI has been de-identified pursuant to 45 CFR 164.514(b), such information is no longer Protected Health Information and no longer subject to this Agreement.
      6. Business Associate acknowledges that, as between Business Associate and Covered Entity, all PHI shall be and remain the sole property of Covered Entity, including any and all forms thereof developed by Business Associate in the course of its fulfillment of its obligations pursuant to the Agreement and Service Agreement.
      7. To the extent that Business Associate is to carry out any of Covered Entity’s obligations that are regulated by HIPAA, Business Associate shall comply with the HIPAA requirements that apply to the Covered Entity in the performance of such obligations.
   2. Safeguards. Business Associate shall employ appropriate administrative, technical and physical safeguards, consistent with the size and complexity of Business Associate’s operations, to protect the confidentiality of PHI and to prevent the use or disclosure of PHI in any manner inconsistent with the terms of this Agreement. Business Associate shall comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of such electronic PHI other than as provided for by this Agreement.
   3. Availability of Books and Records. Business Associate shall permit the Secretary and other regulatory and accreditation authorities to audit Business Associate’s internal practices, books and records at reasonable times as they pertain to the use and disclosure of PHI in order to ensure that Covered Entity and/or Business Associate is in compliance with the requirements of HIPAA.
   4. Individuals’ Rights to Their PHI.
      1. To the extent Business Associate maintains PHI in a Designated Record Set, in order to allow Covered Entity to respond to a request by an Individual for access to PHI pursuant to 45 CFR Section 164.524, Business Associate, within ten (10) business days upon receipt of written request by Covered Entity, shall make available to Covered Entity such PHI.
         1. In the event that any Individual requests access to PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
         2. Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Business Associate will make no such determinations. Except as Required by Law, only Covered Entity will be responsible for releasing PHI to an Individual pursuant to such a request. Any denial of access to PHI determined by Covered Entity pursuant to 45 CFR Section 164.524, and conveyed to Business Associate by Covered Entity, shall be the responsibility of Covered Entity, including resolution or reporting of all appeals and/or complaints arising from denials.
      2. To the extent Business Associate maintains PHI in a Designated Record Set, in order to allow Covered Entity to respond to a request by an Individual for an amendment to PHI, Business Associate shall, within ten (10) business days upon receipt of a written request by Covered Entity, make available to Covered Entity such PHI.
         1. In the event that any Individual requests amendment of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
         2. Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for an amendment to PHI and Business Associate will make no such determinations. Any denial of amendment to PHI determined by Covered Entity pursuant to 45 CFR Section 164.526, and conveyed to Business Associate by Covered Entity, shall be the responsibility of Covered Entity, including resolution or reporting of all appeals and/or complaints arising from denials.
         3. Within ten (10) business days of receipt of a request from Covered Entity to amend an individual’s PHI in the Designated Record Set, Business Associate shall incorporate any approved amendments, statements of disagreement, and/or rebuttals into its Designated Record Set as required by 45 CFR Section 164.526.
      3. In order to allow Covered Entity to respond to a request by an Individual for an accounting pursuant to 45 CFR Section 164.528, Business Associate shall, within ten (10) business days of a written request by Covered Entity for an accounting of disclosures of PHI about an Individual, make available to Covered Entity such PHI. At a minimum, Business Associate shall provide Covered Entity with the following information: (i) the date of the disclosure; (ii) the name of the entity or person who received the PHI, and if known, the address of such entity or person; (iii) a brief description of the PHI disclosed; and (iv) a brief statement of the purpose of such disclosure.
         1. In the event that any Individual requests an accounting of disclosures of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity within five (5) business days.
         2. Covered Entity will be responsible for preparing and delivering an accounting to Individual.
         3. Business Associate shall implement an appropriate record keeping process to enable it to comply with the requirements of this Agreement.
   5. Disclosure to Third Parties. Business Associate shall obtain and maintain a written agreement with each subcontractor or agent that has or will have access to PHI, which is received from, or created or received by, Business Associate for or on behalf of Covered Entity, pursuant to which agreement such subcontractor and agent agrees to be bound by the same restrictions, terms, and conditions that apply to Business Associate pursuant to the Agreement with respect to such PHI.
   6. Reporting Obligations.
      1.  In the event of a Breach of any Unsecured PHI that Business Associate accesses, maintains, retains, modifies, records, or otherwise holds or uses on behalf of Covered Entity, Business Associate shall report such Breach to Covered Entity as soon as practicable, but in no event later than ten (10) business days after the date the Breach is discovered. Notice of a Breach shall include, to the extent such information is available: (i) the identification of each individual whose PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed during the Breach; (ii) the date of the Breach, if known, and the date of discovery of the Breach; (iii) the scope of the Breach; and (iv) the Business Associate’s response to the Breach.
      2. In the event of a use or disclosure of PHI that is improper under this Agreement but does not constitute a Breach, Business Associate shall report such use or disclosure to Covered Entity within ten (10) business days after the date on which Business Associate becomes aware of such use or disclosure.
      3. In the event of any successful Security Incident, Business Associate shall report such Security Incident in writing to Covered Entity within ten (10) business days of the date on which Business Associate becomes aware of such Security Incident. The parties acknowledge that unsuccessful Security Incidents (e.g., pings) occur within the normal course of business and shall not be reported pursuant to this Agreement.
3. OBLIGATIONS OF COVERED ENTITY.
   1. Permissible Requests.
      1. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would violate applicable federal and state laws if such use or disclosure were made by Covered Entity.
      2. Covered Entity may request Business Associate to disclose PHI directly to another party only for the purposes allowed by HIPAA and the HITECH Act.
   2. Notifications.
      1. Covered Entity shall notify Business Associate of any limitation in any applicable notice of privacy practices in accordance with 45 CFR Section 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
      2. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by individual to use or disclose PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
      3. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR Section 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.
4. TERM AND TERMINATION.
   1. General Term and Termination. This Agreement shall become effective on the Effective Date set forth above and shall terminate upon the termination or expiration of the Service Agreement and when all PHI provided by either party to the other, or created or received by Business Associate on behalf of Covered Entity is, in accordance with this Section, destroyed, returned to Covered Entity, or protections are extended.
   2. Material Breach. Where either party has knowledge of a material breach by the other party, the non-breaching party shall provide the breaching party with an opportunity to cure. Where said breach is not cured to the reasonable satisfaction of the non-breaching party within twenty (20) business days of the breaching party’s receipt of notice from the non-breaching party of said breach, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement affected by the breach. Where either party has knowledge of a material breach by the other party and cure is not possible, the non-breaching party shall, if feasible, terminate this Agreement and the portion(s) of the Service Agreement affected by the breach.
   3. Return or Destruction of PHI. Upon termination of this Agreement for any reason, Business Associate shall:
      1. If feasible as determined by Business Associate, return or destroy all PHI received from, or created or received by Business Associate for or on behalf of Covered Entity that Business Associate or any of its subcontractors and agents still maintain in any form, and Business Associate shall retain no copies of such information; or
      2. If Business Associate determines that such return or destruction is not feasible, extend the protections of this Agreement to such information and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible, in which case Business Associate’s obligations under this Section shall survive the termination of this Agreement.
5. MISCELLANEOUS.
   1. Amendment. If any of the regulations promulgated under HIPAA or the HITECH Act are amended or interpreted in a manner that renders this Agreement inconsistent therewith, the parties shall amend this Agreement to the extent necessary to comply with such amendments or interpretations.
   2. Interpretation. Any ambiguity in this Agreement shall be resolved to permit the parties to comply with HIPAA and the HITECH Act.
   3. Conflicting Terms. In the event that any terms of this Agreement conflict with any terms of the Service Agreement, the terms of this Agreement shall govern and control.
   4. Notices. We may provide notices via postings on www.carealign.ai. All notices under this BA Agreement shall be sent in writing by traceable carrier to the addresses indicated below or such other address as a party may indicate with at least ten (10) days’ prior written notice to the other party. CareAlign may provide notices to Covered Entity under this BA Agreement at the email address specified below. Notices shall be deemed given upon receipt. Notices shall be addressed to the appropriate Party as follows:
      If to Business Associate:
      TrekIT Health Inc. d./b./a. CareAlign
      1 Righter Pkwy
      Wilmington, DE 19803
      Attn: Subha Airan-Javia
      If to Covered Entity:
      The notice address for Covered Entity is the email address associated with Provider’s CareAlign account.
   5. Severability. The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained herein.