Important: READ CAREFULLY. These Terms and Conditions (these "Terms") form a legal agreement between you (and if you are acting on behalf of your Organization (as defined below), your Organization) ("Customer", "you", "your") and Axial Healthcare, Inc. ("Company", "we", “us", "our") with respect to your use of Company's proprietary suite of products and services, whether accessed via a mobile or tablet application, web-based portal, third-party portal or product and/or other means to which these terms are linked (collectively, the "Licensed Product"). Please read THESE TERMS carefully before accessing or using the LICENSED PRODUCT. These Terms govern your use of the Licensed Product and affect your legal rights and obligations.
To the extent you access the Licensed Product on behalf of your employer or organization (your "Organization"), you acknowledge and agree that you have been authorized to use the Licensed Product by your Organization. Company shall not be liable, and you agree to indemnify and hold Company and any of its affiliates, subsidiaries, employees, and agents harmless for, all damages, liabilities, penalties, costs and expenses incurred by Company and any of its affiliates, subsidiaries, employees or agents as a result of any violation or failure by you to comply with the foregoing, including without limitation any failure by you to obtain authorization to use the Licensed Product.
By accessing the Licensed Product you are and accepting these Terms, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including without limitation conducting this transaction electronically, the Company's data collection and privacy policies, disclaimers of warranties, damage and remedy exclusions and limitations and a choice of Tennessee law. If you do not agree to be bound by all of the terms contained in this Agreement, do not access or use the Licensed Product.
COMPANY MAY REVISE AND UPDATE THESE TERMS AT ANY TIME. TO THE EXTENT ANY MODIFICATION TO THESE TERMS MATERIALLY AFFECTS YOUR RIGHTS OR OBLIGATIONS UNDER THESE TERMS, THE UPDATED TERMS WILL BE PRESENTED TO YOU UPON YOUR NEXT LOG-IN TO THE LICENSED PRODUCT AND YOU WILL BE REQUIRED TO ACCEPT THE UPDATED TERMS BEFORE PROCEEDING TO THE LICENSED PRODUCT.
YOU ACKNOWLEDGE AND CONFIRM THAT (i) YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS, CONDITIONS, POLICIES, PROVISIONS, DISCLOSURES AND DISCLAIMERS CONTAINED HEREIN, (ii) THAT THESE TERMS HAVE THE SAME FORCE AND EFFECT AS A SIGNED AGREEMENT, AND (iii) THAT YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS HEREOF.
1. Licensed Product The Licensed Product is owned and operated by Company. The Licensed Product is designed for informational purposes only. It is intended to supplement, not to replace, your professional judgment. You shall be responsible for obtaining and maintaining any equipment and services needed to connect to, access or otherwise use the Licensed Product.
2. User Responsibility for Account Use. Customer shall be solely responsible for ensuring the security and confidentiality of all account information and passwords used to access the Licensed Product ("User IDs"). Each User ID may not be shared or Customer acknowledges that it will be fully solely responsible for all liability incurred through use of any User ID and that any use of the Licensed Product under a User ID will be deemed to have been performed by Customer. Customer will notify Company immediately of any known or suspected unauthorized use(s) of any account or User ID, or any known or suspected breach of security, including but not limited to loss, theft or unauthorized disclosure of any User ID or password. Any fraudulent, abusive or otherwise illegal activity, or any violation of these Terms, may be grounds for termination of any account or Customer's access and use of the Licensed Product in our sole discretion.
3. Limited License; Access and Use of Licensed Product. Subject to the terms and conditions of these Terms, Company hereby grants Customer, during the term hereof, a limited, non- exclusive, non-transferable, non-sublicenseable license to access the Licensed Product solely for Customer's internal purposes in evaluating and assessing patient best practices and analytics as well as information regarding care plans and other clinical decision support tools. The Licensed Product may not be continuously available due to maintenance or repairs or due to computer problems or crashes, disruption in Internet service or other unforeseen circumstances. The content of the Licensed Product is intended for use and display only where its use and display are permissible by applicable law. Some content, information and materials made available through the Licensed Product are supplied by persons or entities that are not affiliated with any Company entity ("Third-Party Content"). The Third-Party Content is protected by copyright pursuant to United States laws and international treaties, is owned or licensed by the Third-Party Content provider(s) and are licensed and provided to you subject to the terms of this Agreement. In no event shall the Company be liable for any delays, inaccuracies, errors or omissions in any such Third-Party Content, or for any damages arising therefrom. All rights not expressly granted herein to such Third-Party Content are reserved to the owner of such Third-Party Content.
4. Restrictions. Under these Terms, you may not, and you may not allow others to:
(i) Transfer your access to use the Licensed Product or sublicense or assign your access or your rights with respect thereto, including without limitation any User ID;
(ii) Use, copy, or transfer the Licensed Product or parts of the Licensed Product except as expressly permitted under these Terms;
(iii) Distribute, rent, sell, loan, lease, or sublicense access to the Licensed Product;
(iv) Alter, adapt, merge, modify, translate, or try to create derivative works of the Licensed Product or any elements of the Licensed Product in any way, or for any purpose, other than with the prior written consent of Company;
(v) Reverse engineer, disassemble, or de-compile the Licensed Product or otherwise attempt to obtain the source code for the Licensed Product;
(vi) Remove, change, or obscure any identification marks or notices of proprietary rights and restrictions in the Licensed Product;
(vii) Enable any timesharing or service bureau use of the Licensed Product to any third party;
(viii) Use the Licensed Product for any unlawful purpose or in violation of any applicable law, rule or regulation.
There are two kinds of information that we may obtain about you: (1) Anonymous Information and (2) Personally Identifiable Information.
(i) Anonymous Information — "Anonymous Information" is data in a form that does not permit direct association with any specific Anonymous Information is aggregate data that websites and applications use to administer their sites and services and the contents thereon and therein. This Anonymous Information comprises information that cannot be used to identify or contact you, and may include such information as your browser or device type or your Internet Protocol (IP) address (if not deleted, clipped or anonymized), log file information, cookie information, web beacons and similar tracking technologies. You can change your browser or device settings to prevent cookies or notify you whenever you are sent a cookie. However, if you disable or block cookies on your browser or device, the features on our Licensed Product may not work correctly. Company also collects and uses information about what features Users access and how Users use content and information included in the Licensed Product. Company may, from time to time, retain third parties to help us collect and aggregate information.
(ii) Personally Identifiable Information (PII) — In connection with the Licensed Product, we and our providers collect and/or use certain information that can be used to identify or contact you, including, without limitation, your personal information for maintaining your account (such as your user name, email address, phone number, first and last name, Site name and address ("Personally Identifiable Information")). In addition, when you post or submit information or otherwise provide communications, comments or other materials to the Licensed Product, all such information is collected by us or our providers in order to provide the Licensed Product. By using certain features of the Licensed Product, you also will be providing additional personal information to Company, including, without limitation, your location and your usage patterns of the Licensed Product. Further, when you contact us, we may ask for your name, User ID, email address and/or other information regarding your account so we may process and respond to your
(iii) Anonymous Information is used internally for the administration, troubleshooting, data analysis, auditing, and research of our Licensed Product to help improve the quality, design and information provided to you. Some examples of the kinds of Anonymous Information we may collect include device identifiers, information about your usage of features of the Licensed Product and other data generated during your interactions with the Licensed Product. We may share such aggregated, non-personally identifiable information, such as demographics and general analytics regarding usage of the Licensed Product, with existing and prospective business partners, clients and We never connect aggregate information with personally identifiable information, and none of the Anonymous Information we share will contain any information that identifies you individually.
(iv) We collect Personally Identifiable Information about users only when the user voluntarily provides such information, including patterns of application usage. We may be required to transfer or disclose Personally Identifiable Information to third parties without prior consent if required by law, such as a court-ordered subpoena, search warrant, or other court order, or if required by exigent circumstances. We also may use (and may contract with carefully selected third-party service providers to help us use) your profile information on an aggregate basis — without personal identifiers — and other usage information that is useful in developing new features and content for the Licensed You understand and agree that your information and data provided by or otherwise collected or generated in connection with your use of the Licensed Product, including, without limitation, Personally Identifiable Information, is subject to the rights and licenses granted to Company herein.
(v) As Company continues to develop the Licensed Product, we may buy, merge or partner with other companies or businesses, and in so doing, acquire customer In such transactions, information collected through the Licensed Product may be among the transferred assets. Similarly, in the unlikely event that a portion or substantially all of our assets are sold or transferred to a third party, such information would likely be one of the transferred business assets.
(vi) Protecting the privacy of children is very important to The Children's Online Privacy and Protection Act of 1998 ("COPPA") defines a "Child" as anyone under the age of 13. We strictly adhere to COPPA. For that reason, we do not collect or maintain information obtained through the Licensed Product from those we actually know are under 13, and no part of the Licensed Product is structured to attract anyone under 13.
(vii) To the extent that you provide or transmit any information, including, but not limited to, any Personally Identifiable Information, any information that identifies any other individual (including without limitation name, email address and/or telephone number) and/or Protected Health Information (PHI) as defined for purposes of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), to Company or its third-party service or data providers, licensors, or distributors ("Representatives") through the Licensed Product, you warrant that (a) you are providing or obtaining only your own information or the information of others which you are authorized to provide to third parties and/or obtain from third parties on their behalf; and (b) the use of such information by Company and its Representatives will not infringe upon or misappropriate the intellectual property rights or otherwise violate the rights of any third
(viii) Use and disclosure of PHI — We may request PHI from you in order to deliver requested materials, respond to your questions, deliver a product or service, or to verify appropriate Site usage. This information is collected from your employer or health insurance plan (our client). We may collect information about your diagnosis and/or medical condition, treatment/medical history (including prescription medications), health insurance information, or other relevant The information we collect includes PHI, as defined by HIPAA. Any personal information that you may provide to Company will be used solely for the purpose specified by your employer or health insurance plan. We may be required to transfer or disclose PHI to third parties without prior consent if required by law, such as a court-ordered subpoena, search warrant, or other court order, or if required by exigent circumstances. We also may use (and may contract with carefully selected third-party service providers to help us use) your profile information on an aggregate basis — without personal identifiers — and other usage information that is useful in developing new features and content for the Licensed Product. You understand and agree that your information and data provided by or otherwise collected or generated in connection with your use of the Licensed Product, including, without limitation, PHI, is subject to the rights and licenses granted to Company herein.
(ix) Storage, retention, and destruction of PHI — Company takes precautions to protect its users' personal non-public information and When users submit personal information to Company, the information is protected both online and off-line. Personal information is encrypted and is protected with encryption software that meets or exceeds industry standards, both when sent (i.e., in transit) and when stored (i.e., at rest). The computers and servers that store personally identifiable information are kept in a secure environment. Only Company employees who need the information to perform their jobs are granted access to personally identifiable information. Furthermore, all Company employees are kept up-to-date on Company security and privacy practices. PHI collected and maintained by Company will be retained in accordance with our retention policy. PHI is disposed of in a secure manner when no longer needed for the purpose for which it was obtained and used.
(x) Third parties partnered with Company must maintain physical, electronic, and procedural safeguards designed to protect personal information that comply with federal regulations. Security breaches that put PII or PHI at risk, such as an unauthorized disclosure of said sensitive information, must be reported to Company at email@example.com. Please note that your email, like most non-encrypted Internet communications, may be accessed and viewed by others without your knowledge and permission while in transit to us. Therefore, please do not send email to us with personal information. Company has no way to secure personal information sent via email.
(xi) To report a privacy incident or pose questions/concerns regarding the security of your personal information, please email Company at firstname.lastname@example.org. Please note that your email, like most non-encrypted Internet communications, may be accessed and viewed by others without your knowledge and permission while in transit to Therefore, please do not send email to us with personal information. Company has no way to secure personal information sent via email.
(xii) Any complaints or concerns regarding the privacy or security of PHI maintained by Company are directed to Company's Privacy Officer via email@example.com. Our Privacy Program calls for all such complaints and their disposition to be documented and maintained by the Privacy Officer. Company has implemented a complaints and non- retaliation Policy to ensure open communication regarding privacy and security concerns and to ensure that an individual may exercise his or her rights under the HIPAA Privacy Rule, including filing a complaint without fear of retaliation by Company. Company acknowledges its responsibility and obligation to mitigate, to the extent it can, improper uses or disclosures of PII and In the event of an unauthorized disclosure of PHI and/or PII reported to or discovered by Company, Company will provide notification of the unauthorized disclosure to all of the affected parties. Company also will abide by all legal requirements regarding notification of unauthorized disclosure of PHI and/or PII.
6. Proprietary Rights. The Licensed Product and any intellectual property, information, data or other materials furnished or provided to you by the Company ("Company IP") in connection with this Agreement are the sole and exclusive property of the Company, and are available to you solely for purposes of your use of and access to the Licensed Product in accordance with the terms of this Agreement. All rights, title and interests in and to the Licensed Product and all copyrights, trade secret rights, patents, trademarks and any other intellectual property or proprietary rights in and to the Licensed Product shall at all times remain the exclusive property of Company and/or its Except for the limited rights granted herein, nothing in this Agreement shall transfer to you any right, title, or interest in or to any Company IP.
You acknowledge and agree that you may be providing certain feedback, statements, suggestions, and ideas ("Ideas") to Company, directly or through a third party, in connection with your use of the Licensed Product, which Company or its licensors may use in future modifications to the Licensed Product, multimedia works, and advertising and promotional materials relating thereto. In addition, you acknowledge and agree that Company may have access to any comments, content, messages, text, opinions, suggestions, ideas, materials (including without limitation photographs and graphics) and other submissions ("User Submissions") that you send to Company or otherwise post, upload, submit, display or share. Furthermore, you acknowledge and agree that Company may have access to certain analytic and demographic data ("Data") with respect to your use of the Licensed Product. In consideration of your access to the Licensed Product, you hereby irrevocably assign to Company any and all rights, title, and interests in any Ideas and Data, including without limitation any copyright, patent right, moral right, and all other intellectual property rights.
You acknowledge and agree that submission of User Submissions and Ideas to Company, either orally or in writing, will not in any way establish a confidential relationship with Company, nor will it place Company in the position of receiving a disclosure of trust.
Company will not be obligated and makes no commitment to treat or maintain Ideas that you submit as confidential. In addition, you do not expect any type of payment or remuneration from Company for User Submissions, Ideas or Data. You agree that all documents and materials submitted to Company will become the property of Company, unless Company agrees otherwise in writing. No obligation is assumed or may be implied on the part of Company by receipt or examination of the User Submissions, Ideas or Data, to compensate you, or otherwise enter in another agreement with you.
7. Disclaimer; No Medical Advice. THE CONTENT ON AND IN THE LICENSED PRODUCT IS NOT INTENDED IN ANY WAY TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE AND DOES NOT CONSTITUTE A MEDICAL THE LICENSED PRODUCT, CONTENT AND/OR ANY OTHER INFORMATION OR SERVICES PROVIDED BY US ARE PROVIDED "AS IS" AND "WITH ALL FAULTS," AND NEITHER COMPANY, NOR OUR PARENT COMPANIES, SUBSIDIARIES, AFFILIATES OR LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE AND OUR LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TIMELINESS, ACCURACY, COMPLETENESS OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT (I) THE LICENSED PRODUCT, CONTENT OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED UNDER THESE TERMS WILL MEET YOUR REQUIREMENTS; (II) THE QUALITY OF THE LICENSED PRODUCT, CONTENT, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE LICENSED PRODUCT WILL MEET YOUR EXPECTATIONS; (III) THE OPERATION OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED OR ERROR- FREE; (IV) THE CONTENT OF THE LICENSED PRODUCT WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE, OR ACCURATE; OR (V) THAT ERRORS WILL BE CORRECTED. NEITHER THE CONTENT NOR ANY OTHER SERVICE OFFERED BY OR THROUGH THE LICENSED PRODUCT IS INTENDED TO BE RELIED ON FOR MEDICAL DIAGNOSIS OR TREATMENT.
8. Indemnification. You agree to indemnify, defend and hold Company, and our affiliates, shareholders, directors, officers, licensors, subsidiaries, parents, employees and agents harmless from any claim, demand, liability, dispute, damage, cost, expense, or loss, including attorneys' fees and costs of litigation, arising out of or in any way related to Customer's use of or access to the Licensed Product and/or Customer IP, or Customer's violation of these Terms, any applicable laws or regulations, or of any rights of another.
9. Confidential Information. Customer acknowledges and agrees that the Licensed Product and Company IP, including without limitation all formats, processes, methodologies, applications, interfaces and tools therein are the confidential information ("Confidential Information") of and proprietary to Company, and agrees not to disclose such Confidential Information to anyone other than its employees who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those herein. In addition, Customer agrees that it will not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations under these Terms. Customer shall protect the Confidential Information at least to the same extent it protects its own similar information, but in no event using less than reasonable care.
10. Termination. Your rights to use and access the Licensed Product will terminate automatically if you fail to comply with any of the terms or conditions contained in these Terms. These Terms also will terminate automatically and your access to the Licensed Product will be terminated without notice (i) upon termination of the underlying Customer Agreement entered into between your Organization and Company ("Organization Agreement"), as applicable; or (ii) if you become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative receiver or other receiver appointed, or if you suffer or file any similar action in consequence of debt. In the event these Terms are terminated, Sections 1, 2, and 4-12 shall survive.
11. Disclaimers, Limitations of Liability, and Other Information. BY ENTERING OR USING THE LICENSED PRODUCT, YOU EXPRESSLY AGREE THAT COMPANY AND OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES, SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS, DEMANDS OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, AS A RESULT OF YOUR USE OF THE LICENSED PRODUCT OR ANY COMPANY IP, CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE LICENSED PRODUCT OR ANY OTHER INTERACTION WITH US. IN DOING SO, YOU AGREE THAT YOU ARE WAIVING VOLUNTARILY AND UNEQUIVOCALLY ANY LIABILITY OF US. If any exclusion, disclaimer or other provision contained in these Terms is held to be invalid for any reason by a court of competent jurisdiction and OR ONE OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES becomes liable for loss or damage that could otherwise be limited, such liability whether in contract, tort or otherwise, will not exceed the amount actually paid by your use of the LICENSED PRODUCT. Please note that some jurisdictions may not allow the exclusion or limitation of certain warranties, so some of the above exclusions may not apply to you. We do not make any representation or warranty concerning errors, omissions, delays or other defects in the Company IP, or that the Licensed Product (including without limitation files or Company IP contained therein) is free of viruses, worms, Trojan horses or other code that include or manifest contaminating or destructive characteristics. Any claim or cause of action arising out of your use of the Licensed Product or these Terms must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by us to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.
12. Dispute Resolution. You agree that any dispute arising out of or relating in any way to your use of the Licensed Product requires that such claim be resolved exclusively by confidential, binding arbitration. The arbitration shall be conducted before three neutral arbitrators in Nashville, Tennessee, U.S.A., in accordance with the rules of the American Arbitration Association ("AAA"), as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys' fees without regard to which party is deemed the prevailing party in the arbitration proceeding. The parties shall equally share all AAA charges and fees associated with the arbitration. Subject to these Terms, the arbitrators will have the authority to apportion liability between the parties, but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of these Terms. The arbitration award will be presented to the parties in writing, and upon the request of either party, will include findings of fact and conclusions of law. The award may be confirmed and enforced in any court of competent jurisdiction. With regards to any action for breach of confidentiality or intellectual property obligations, nothing in this Section shall preclude either party from seeking interim equitable relief in the form of a temporary restraining order or preliminary injunction. Any such request by a party of a court for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate hereunder. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE LICENSED PRODUCT.
BECAUSE THE USE OF THE LICENSED PRODUCT REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.
The award of the arbitrators may be enforced in any court having jurisdiction thereof. Each party hereby consents (i) to the exclusive jurisdiction of the state or federal courts located in Nashville, Tennessee, for any action (a) to compel arbitration, (b) to enforce any award of the arbitrators, or (c) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim or provisional equitable remedies, and (ii) to service of process in any such action by registered mail or any other means provided by law. Should this Section 12 be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that sole and exclusive jurisdiction and venue for any claims will be in the state or federal courts in Nashville, Tennessee, and each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
13. General. These Terms, and any Organization Agreement and/or any Business Associate Agreement entered into between your Organization and Company, are the entire agreement between your Organization and with respect to the Licensed Product and supersede all previous communications, representations, understandings, and agreements, either oral or written, with respect to the Licensed Product or other subject matter covered by these Terms. If any part of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of these Terms will remain fully in force. These Terms shall be governed by the laws of the United States of America and the State of Tennessee.