The terms of this Services Agreement constitute a legally binding agreement (the “Agreement”) between you and Axxess Technology Solutions, Inc. (“Axxess,” “we,” “us” or “our”) governing your use of Axxess’ application(s), website(s), and technology platform(s) (collectively, the “Solutions”).

PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND AXXESS HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 16 BELOW). THESE PROVISIONS WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST AXXESS TO MEDIATION, AND IF NOT RESOLVED THROUGH MEDIATION, TO BINDING AND FINAL ARBITRATION ON
AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.

By entering into this Agreement, you expressly acknowledge that you understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS Axxess Solutions.

IMPORTANT INFORMATION FOR PROFESSIONALS (AS DEFINED BELOW): PLEASE NOTE THAT TO USE THE AXXESS SOLUTIONS, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS EXCEPT AS IT OTHERWISE PROVIDES OR IF YOU OPT OUT AS PROVIDED IN SECTION 18(ix), IT WILL REQUIRE YOU TO RESOLVE ALL LEGAL DISPUTES ARISING OUT OF OR RELATING TO YOUR RELATIONSHIP WITH AXXESS OR AN ORGANIZATION THROUGH MANDATORY MEDIATION AND IF MEDIATION FAILS, ON AN INDIVIDUAL BASIS IN FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THESE TERMS, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW. IMPORTANT INFORMATION FOR USERS (AS DEFINED BELOW): PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND AXXESS HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 19 BELOW). THESE PROVISIONS WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST AXXESS TO MEDIATION, AND IF NOT RESOLVED THROUGH MEDIATION, TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.

1) Definitions

1. “Affiliates” means, in respect of any specified person, any other person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified User. For purposes of the definition of “Affiliate,” “control” when used in respect of any person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise (and “controlling” and “controlled” have meanings correlative thereto).
2. “Axxess Server” means the hardware equipment owned and operated by Axxess and utilized by Axxess to host Solutions and provide related services hereunder.
3. “Client” means an individual registered with an Organization seeking Home Health Services.
4. “Client Information” means personally identifiable information about a Client, including, but not limited to, protected health information as defined by HIPAA.
5. “Confidential Information” means, with respect to a party, all information regarding the business or activities of such party, including trade secrets, know-how, technical information, research and development, business plans, processes, procedures, methods, systems, databases, computer programs (including executable, object, source code and documentation), and information about financial condition, customers, prospects, vendors, marketing strategies, employees and operations, in each case whether provided (i) in written documents, memoranda, reports, correspondence, drawings, computer files or other human or machine readable media or (ii) orally, and whether provided by or on behalf of any party. Notwithstanding the foregoing, “Confidential Information” shall not include such portions of any information that are or become generally known to and available for use by the public other than as a result of any act or omission by the party receiving such information or otherwise as a result of any breach of any term or condition of this Agreement or other obligation of confidentiality by the party receiving such information.
6. “Customer Support” means customer support functions provided by Axxess to Users hereunder for Solutions as described in the Service Order and any subsequently attached Service Order.
7. “Home Health Services” means a Professional’s provision of skilled nursing services to an Organization’s Client.
8. “License” means a limited, nontransferable, non-sublicensable and nonexclusive license.
9. “Opportunity” means the opportunity to provide Home Health Services.
10. “Organization(s)” means any person or entity seeking electronic data collection and data submission services or matching services for business purposes in the fields of medicine and healthcare.
11. “Professional(s)” means any person registered with, or seeking to be registered with Axxess who performs Home Health Services.
12. “Services” means the access to the Solutions provided by Axxess over the Internet or any intranet.
13. “Solutions” means any Axxess software and any upgrades or enhancements thereto, or any intellectual property hosted by Axxess on its server as may be described in the Service Order(s) attached hereto, incorporated herein, or referenced hereby and any subsequently attached, incorporated, or referenced Service Order(s).
14. “Super-User”. Organization’s designee with special privileges to submit requests for immediate support through Axxess Support Ticketing Center, a special platform accessible only by Super-Users. Each Super-User will be designated by Organization for the term of the Agreement.
15. “User” refers to an Organization or Professional. Plural form refers to both Organizations and Professionals.
16. “User Data” means data originating from User, User’s employees or third parties on behalf of User.
17. “User Information” means any information User provides, publishes or posts to or through Axxess’ Solutions or Services (including any profile information User provides) or sends to other Users (including via inapplication feedback, any email feature, or through any Axxess-related Facebook, Twitter or other social media posting).

2) License

1. License Grant. Subject to the terms and conditions set forth herein, Axxess hereby grants User a License to access and use the Solutions during the Term. The License extends to the Solutions only and does not grant, and User does not obtain under this Agreement, any right to distribute, sell, or sublicense access to the Solutions in any form. Except as provided herein, Axxess grants no rights or licenses to User, by implication, estoppels, or otherwise, in or to the Solutions or any intellectual property rights therein.
2. User acknowledges that User’s use of the Solutions is limited to the scope of the License and that this Agreement does not permit the User to use the Solutions other than as provided herein. Without Axxess’ prior written consent, User shall not: (i) knowingly or negligently permit other individuals or entities to use or copy the Solutions except in strict accordance with the terms and conditions of this Agreement; or (ii) modify, translate, alter, adapt, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Solutions, or apply any process, technique or procedure to ascertain or derive the source code to the Solutions, which is a valuable trade secret of Axxess; or (iii) merge the Solutions with any other software or service; or (iv) publish or provide any results of benchmark tests run on the Solutions to a third party; or (v) sublicense, rent, lease, grant a security interest in, or otherwise transfer rights to the Solutions except as specifically permitted herein; or (vi) use the Solutions to operate in or as a time-sharing, outsourcing, or service bureau environment other than for User’s own internal use, or in any way allow third-party access to the Solutions.
3. Trademarks and Publicity. Each party acknowledges that it will acquire no rights in any trademarks, service marks, trade names or logos of the other party pursuant to this Agreement; as such marks are and shall remain the exclusive property of such other party. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right to use in advertising, publicity or other promotional activities, any name, trade name, trademark, or other designation (including any contraction, abbreviation, or simulation of any of the foregoing) of the other party without the express written approval of such other party.

3) Axxess Solutions

1. Axxess provides a wide variety of Solutions for Users seeking electronic data collection and data submission services for business purposes in the fields of medicine and healthcare. Furthermore, Axxess provides Professionals with Solutions for Professionals to provide Home Health Services to an Organization’s Clients. Each User shall create a User account that enables access to the Solutions. An Organization with multiple branches or locations must pay Axxess any applicable Implementation Fee, Monthly Fee, Billing Services, Recovery Services, Reserves, and any other Fee for each location. Solutions shall include but are not limited to Axxess Mobile, AxxessRCM, AxxessDDE, AxxessCARE, Agencycore, Axxess HomeCare, AxxessCAHPS, AxxessHospice, Billing Services and Payment Recovery Services.
2. Axxess agrees to make the Solutions available to User through the Services during the Term. User acknowledges that from time to time the User Data may be inaccessible or inoperable for the following reasons: (a) equipment malfunctions; (b) periodic maintenance; or (c) catastrophic events beyond the control of Axxess or which are not reasonably foreseeable by Axxess, including interruption or failure of telecommunication or digital communication links or hostile network attacks (collectively referred to as “Downtime”). Axxess shall use commercially reasonable efforts to provide twenty four (24) hours’ advance notice to Users prior to any scheduled Downtime. User has observed the overall speed of Axxess’ Solutions, has agreed that such processing speed is acceptable to User, and will take all reasonable steps to prevent any material degradation of the processing speed available to User during business hours.\
3. Hardware and Software. User shall acquire, install, maintain and configure any and all software, hardware, peripheral devices, operating systems, utility programs, licensed connections and/or services required by User to access the Solutions.
4. Available Bandwidth. User shall maintain intranet, Internet, LAN and/or WAN network (collectively, the “Network”) connections that are reliable and have sufficient available bandwidth to allow the Services to perform to User’s satisfaction.
5. User hereby agrees to allow Axxess to complete benchmarking, research and development data, including, but not limited to operational, financial and clinical data of User and Clients in order to provide comparative benchmarking services, decision support services and predictive disease management services to Axxess’ customers and prospective customers and for use in Axxess’ research and development of the Solutions. User agrees to release all of such data for such purposes. Axxess agrees to keep the identity of User and all protected health information confidential.
6. Axxess provides certain Professionals with opportunities to be matched with Organizations that seek Professionals who are not part of the Organization’s ordinary workforce to provide Home Health Services to the Organization’s Clients. Any decision by a User to offer or accept an Opportunity is a decision made in such User’s sole discretion. Each Opportunity accepted by a Professional shall constitute a separate agreement between the Professional and the Organization.

4) Eligibility

1. Becoming a User. The Solutions may only be used by Users who can form legally binding contracts under applicable law. The Solutions are not available to children (persons under the age of 18), those who do not satisfy all eligibility terms, or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. Professionals seeking to use AxxessCARE acknowledge and agree that they must be employed and remain employed as a W-2 employee of an Organization to be eligible to use AxxessCARE. Furthermore, a Professional is prohibited from applying for an Opportunity on behalf of an Organization that the Professional is currently employed as a W-2 employee, but may perform an Opportunity for other Organizations.
2. Background Check. Prior to being eligible for an Opportunity through AxxessCARE, Professionals will be required to complete a background check through Axxess’ third party vendor, Checkr, or any other third-party assigned by Axxess. The vendor is exclusively responsible for conducting the background check in compliance with applicable law and providing Professional with all applicable notices and instructions regarding the same. Axxess will provide the Organization with the results of the background check.
3. Licensure, Vaccinations and Certifications. Professionals seeking to use AxxessCARE will be required to obtain and pay fees for any professional licenses, vaccinations and certifications where required by any state or local law, ordinance or regulations. Professionals may not use AxxessCARE or accept any Opportunities unless all professional licenses, vaccinations and certifications required by the applicable state or local law or governing authority are up to date. Axxess shall not be liable and Professional agrees to indemnify, defend, and hold harmless Axxess, its officers, directors, members, employees, successors, and assigns from and against any claims, losses, costs, fees, liabilities, damages or such injuries arising out of Professional’s failure to obtain any such license, vaccination or certification.
4. To ensure compliance with section 4.3, Professionals seeking to use AxxessCARE will be required to provide Axxess with written confirmation of all such licenses and certifications. Professionals must also certify that they have received all vaccinations required by any state or local law, ordinance or regulation. However, it is Professional’s responsibility to maintain required licenses, vaccinations and certifications and Axxess is not responsible for ensuring that Professionals do.
5. Professionals using AxxessCARE acknowledge and agree that it is their sole responsibility to maintain (i) workers’ compensation coverage for themselves to the extent required by applicable law, and (ii) all other insurance required by Organizations.

5) Relationship of the Parties using AxxessCARE

1. Professional’s Relationship with an Organization. Professional acknowledges and agrees that his or her performance of an Opportunity on behalf of an Organization creates a direct business relationship between the Professional and the Organization. Axxess is not liable for the actions or inactions of an Organization in relation to a Professional or a Professional’s activities. A Professional shall have the sole responsibility for any obligations or liabilities to an Organization or other third party that arise from the Professional’s performance of an Opportunity.
2. Professional’s Relationship with Axxess. Professional acknowledges and agrees that Axxess’ provision of AxxessCARE through Services to him or her creates a direct relationship between Axxess and Professional. Axxess does not, and shall not be deemed to, direct or control the Professional generally or in the performance under this Agreement, including in connection with Professional’s provision of Opportunities. Professional retains the sole right to determine when, where, and for how long he or she will utilize AxxessCARE. Professional retains the option to apply for and to accept or decline an Organization’s request to perform an Opportunity. Axxess shall have no right to require Professional to: (a) display the name Axxess or any of its affiliates’ names, logos or colors, or (b) wear a uniform or any other clothing displaying the name Axxess or any of its affiliates’ names, logos or colors. Professional acknowledges and agrees that he or she retains the complete right to engage in any other occupation or business or otherwise contract with an Organization. Professional acknowledges that Professional is not a business associate, subcontractor, or agent of Axxess under HIPAA and, to the extent that Professional handles protected health information, Professional handles it in the role of a HIPAA covered entity. Axxess retains the right to deactivate or otherwise restrict Professional from accessing or using AxxessCARE in the event of a violation or alleged violation of this Agreement, Professional’s disparagement of Axxess or any of its affiliates, Professional’s act or omission that causes harm to Axxess’ or its affiliates’ brand, reputation or business as determined by Axxess in its sole discretion.

3. Organization’s Relationship with Professional. Organization acknowledges and agrees that its use of AxxessCARE creates a direct business relationship between it and Professional. Organization also acknowledges and agrees that the classification of Professional as an independent contractor or an employee is at the Organization’s sole discretion. Notwithstanding Organization’s classification of Professional, Organization acknowledges and agrees that it may be deemed the sole or joint employer, in fact or appearance, of any Professional that performs an Opportunity on its behalf. Organization may wish to seek legal and/or tax advice from appropriate counsel to determine any requirements or obligations that may apply if Organization is deemed the employer. Organization further acknowledges and agrees that it is solely responsible for (i) ensuring that Professional meets local and state certification and health requirements prior to performing an Opportunity; (ii) determining rates or method of pay for an Opportunity in conjunction with the Professional; (iii) compensating a Professional for performing an Opportunity; and (iv) determining whether to require a Professional to possess a minimum level of liability insurance.

4. Organization’s Relationship with Axxess. Organization acknowledges and agrees that its use of AxxessCARE creates a direct business relationship between it and Axxess. Axxess shall not be deemed to, direct, or control Organization generally or in its performance under this Agreement specifically, including in connection with its use of AxxessCARE. Organization further acknowledges and agrees that is use of AxxessCARE does not guarantee compliance with applicable federal and state law, specifically including wage and hour laws and HIPAA. Axxess expressly disclaims responsibility for Organization’s legal compliance in any respect.

6) Payments

1. User agrees to pay the amounts charged for use of the Solutions and Services (“Fees”). User must pay Axxess any applicable Implementation Fee, Monthly Fee, Billing Services, Recovery Services, Reserves, and any other Fee set forth in and as defined by the Service Order or as may be otherwise agreed in writing by the parties. User acknowledges and agrees that, notwithstanding that the Fees may be paid on a monthly basis, by entering into this Agreement, User is committing to pay all Fees as they become due throughout the Term, whether or not User continues to use the Services during such period or ceases using the Services in their entirety. The Fees do not include federal, state or local taxes, and to the extent such taxes are due, User shall be liable for payment thereof. If at any time there are overdue unpaid invoices, Axxess may elect to cease providing Services under this Agreement until all overdue unpaid invoices are paid in full, and such action shall not constitute a breach of this Agreement. Axxess may increase Fees annually up to five percent (5%) or to the standard list price. In addition to any applicable pricing variances outlined in the Service Order, Axxess may increase Fees during any year during the Term if Axxess incurs unforeseen costs greater than five (5%) to provide the Solutions or other Services. User will pay Axxess the initial fees set forth in the Service Order or as may be otherwise agreed in writing by the parties. During the Implementation process, Organization must designate two primary Super-Users. Organization may designate additional secondary Super-Users. The monthly recurring fee for each additional secondary Super-User is $250. Requests for customized education, presentations, reports, or other services not included in this Agreement will be conducted at the expense of the User and will be billed at the rate of $250 per hour. Any and all applicable state taxes associated with the Solutions and Services will be User’s responsibility.

2. Prior to receiving access to the Solutions and Services, User must pay any applicable Fees for the first month of the Term and provide an email address where User can receive invoices. Thereafter, User must set up recurring credit card payment or recurring Automated Clearing House (ACH) to include account number, routing number, and a copy of voided check from a bank/financial institution for the Fees. When applicable, User will be billed monthly for using the Solutions and Services on the monthly anniversary date of when access to the Solution was granted. All payments are non-refundable. If Axxess does not receive the full amount of payment within thirty (30) days after the payment due date, an additional 1.5% per month, or the highest amount allowed by law, whichever is higher, will be added to User’s unpaid balance and User hereby authorizes Axxess or its affiliates to deduct such amounts from User’s credit card or bank account through a bank draft. User shall also be liable for any and all attorney and collection fees arising from Axxess’ efforts to collect any unpaid balance of User’s account. Invoices will be sent via email to the email provided during the registration process. User must be current on all invoices related to Axxess Solutions and Services. User hereby agrees that Axxess has the right to suspend User’s access to the Solutions and Services without prior notice to User if User’s account becomes delinquent or if User initiates a chargeback with User’s credit card or banking institution. All outstanding invoices must be paid before User’s account will be reinstated. During the term of any such account suspension, Axxess will aggregate all delinquent invoices associated with User’s account, and all amounts due must be paid in full before User’s account will be restored. User agrees that User shall be liable for all costs of collection of any delinquency, including collection agency fees, reasonable attorneys’ fees, and court costs.
3. Cancellation Fee. An Organization or Professional may cancel an AxxessCARE Opportunity after it has been posted or accepted. Multiple cancellations may result in suspension of User’s account.
4. Facilitation of Charges. AxxessCARE payments are processed through a third-party payment processing service (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.). Axxess uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing. In order for you to use Braintree’s payment processing services, you must read and agree to the Commercial Entity User Agreement (CEA) available at https://www.braintreepayments.com/legal/cea-wells and the Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement. By accepting this Agreement, you agree: (a) that you have downloaded or printed the CEA, and (b) that you have reviewed and agree to the CEA. If you have questions regarding the CEA or the PSA, please contact Braintree at 877.434.2894. Axxess may replace its third-party payment processing services without notice to User.

5. No Refunds. All charges are non-refundable. This no-refund policy shall apply at all times regardless of User’s decision to terminate usage of the Solutions or Services, any disruption to the Solutions or Services, or any other reason whatsoever.
6. Credit Card Authorization. Upon addition of a new payment method, or each additional Solutions or Services, Axxess may seek authorization of User’s selected payment method to verify the payment method, ensure the invoice will be covered, and protect against unauthorized usage. The authorization is not a charge; however, it may reduce User’s available credit by the authorization amount until the credit card or bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in User’s account, User may be subject to overdraft or NSF (not sufficient funds) charges by the bank issuing User’s debit or check card. Axxess cannot be held responsible for these charges and is unable to assist User in recovering them from the issuing bank. Check out our Help Center to learn more about our use of pre-authorization holds.
7. Payments to Professionals using AxxessCARE. Professional performing an Opportunity posted by an Organization on AxxessCARE will receive payment from Braintree, a third party payor, on behalf of an Organization after Professional has completed and the Organization has approved visit notes related to the Opportunity. Professional acknowledges and agrees that Axxess is not responsible for paying him or her for performing the Opportunity. The Organization is exclusively responsible for paying the Professional and the third party payor is exclusively responsible for issuing payments in compliance with applicable law and providing Professional with all applicable notices and instructions regarding the same.
8. Professional’s Taxes. Professional performing an Opportunity posted by an Organization on AxxessCARE acknowledges and agrees that it is Professional’s sole responsibility to comply with all federal, state and local tax obligations that pertain to all gross compensation he or she receives from Organizations. Axxess shall not withhold or pay or be obligated to withhold or pay any payroll or employment taxes (including, but not limited to, FICA, FUTA, federal personal income tax, state personal income tax, state disability insurance tax, state unemployment insurance tax, and state worker’s compensation insurance tax) or other amounts with respect to any Opportunities performed by or amounts paid to Professional by an Organization. Accordingly, Professional acknowledges that he or she may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.
9. Payments from Organizations utilizing AxxessCARE. Organization is required to identify the rate of pay for each Opportunity it posts to AxxessCARE. When Organization assigns an Opportunity requested by a Professional, Organization will be required to provide an active credit or debit card number to pay the Professional for performing the Opportunity. Axxess will provide Organization’s credit or debit card information to a third party for payment processing. Axxess uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing. In order for User to use Braintree’s payment processing services, User must read and agree to the Commercial Entity User Agreement (CEA) available at https://www.braintreepayments.com/legal/cea-wells and the Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement. By accepting this Agreement, User agree: (a) that Use has downloaded or printed the CEA, and (b) that User has reviewed and agree to the CEA. If User has questions regarding the CEA or the PSA, please contact Braintree at 877.434.2894. Axxess may replace its third-party payment processing services without notice to User. The third party will place a hold on Organization’s funds equal to the rate of pay for the Opportunity when the Organization assigns the Opportunity to a Professional. If the Professional completes the Opportunity and the Organization approves the Professional’s visit notes, the third party will release Organization’s payment to the Professional. Organization acknowledges and agrees that such payments are final and any chargeback will be subject to the provisions of the Cross-Collateralization section below. Axxess is not responsible for the Organization’s obligation to pay Professionals.

10. Cross-Collateralization. User must be current on all invoices related to Axxess Solutions and Services. User hereby agrees that Axxess has the right to suspend Services to User without prior notice if User’s account becomes delinquent or if User initiates a chargeback with User’s credit card or banking institution until all outstanding issues are resolved. During the term of any such Services suspension, Axxess will aggregate all delinquent invoices associated with User’s account, and all amounts due must be paid in full before Services will be restored. User agrees that it shall be liable for all costs of collection of any delinquency, including collection agency fees, reasonable attorneys’ fees, and court costs.

7) Communications

1. Modes of Communications. User agrees to receive communications from Axxess, including via e-mail, text message, calls, and push notifications. User agrees that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Axxess, its affiliated companies and/or other Users, may include but are not limited to: operational communications concerning User’s account or use of the Solutions or Services, updates concerning new and existing features, communications concerning promotions run by us or our thirdparty partners, and news concerning Axxess and industry developments. Standard text messaging charges applied by User’s cell phone carrier will apply to text messages we send.

2. When User opts-in to the texting service, we will send User an SMS message to confirm User’s signup. User can cancel the SMS service at any time. Just text “STOP” to 299377. After User sends the SMS message “STOP” to us, we will send User an SMS message to confirm that User has been unsubscribed. After this, User will no longer receive SMS messages from us. If User wants to join again, User signs up just as User did the first time and we will start sending SMS messages to User again. If at any time User forgets what keywords are supported, just text “HELP” to 299377. After User sends the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe. We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, U.S. Cellular, Alltel, Boost. Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). As always, message and data rates may apply for any messages sent to User from us and to us from User. If User has any questions about User’s text plan or data plan, it is best to contact User’s wireless provider. For all questions about the services provided by this short code, User can send an email to [email protected]. If User has any questions regarding privacy, please read our privacy policy: www.axxess.com/privacy

3. OPT OUT or UNSUBSCRIBE. IF USER WISHES TO OPT OUT OF PROMOTIONAL EMAILS, USER CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF USER WISHES TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, USER MAY TEXT “STOP” TO 299377 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. USER ACKNOWLEDGES THAT USER IS NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING AXXESS; SOLUTION OR SERVICES. IF USER WISHES TO OPT OUT OF ALL TEXTS OR CALLS FROM AXXESS (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), USER CAN TEXT THE WORD “STOPALL” TO 299377 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER USER ACKNOWLEDGES THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT USER’S USE OF THE AXXESS SOLUTIONS OR SERVICES.

8) User Information

1. User consents to us using User Information to create a User account that will allow User to use Axxess Solutions and participate in the Services. User’s collection and use of personal information in connection with Axxess Solutions and Services is as provided in Axxess’ Privacy Policy located at www.axxess.com/privacy. User is solely responsible for User Information and User’s interactions with other members of the public, and we act only as a passive conduit for User’s online posting of User Information. User agrees to provide and maintain accurate, current and complete information and that we and other members of the public may rely on User Information as accurate, current and complete. To enable Axxess to use User Information, User grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights User has in User Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. Axxess does not assert any ownership over User Information; rather, as between User and Axxess, subject to the rights granted to us in this Agreement, User retains full ownership of all of User Information and any intellectual property rights or other proprietary rights associated with User Information.
2. Social Media. User may be able to create or log-in to User’s Axxess User account through online accounts User may have with third party social networking sites (each such account, an “SNS Account”). By connecting to Axxess through an SNS Account, User understands that Axxess may access, store, and make available any SNS Account content according to the permission settings of User’s SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). User understands that SNS Content may be available on and through Axxess Solutions to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be User Information.

9) Promotions and Referral Programs

2. Promotional Event. Axxess, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Axxess. Axxess reserves the right to withhold or deduct credits or benefits obtained through a promotion event when Axxess determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
3. Referred User. As part of your User account, Axxess may provide you with or allow you to create an “Axxess Code,” a unique alphanumeric code for you to distribute to friends, family and other prospective User (each a “Referred User”) to become a new User. Axxess Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Axxess Code. You are prohibited from advertising Axxess Codes, including but not limited to: Google, Facebook, Twitter, Bing and Craigslist. Axxess reserves the right to deactivate or invalidate any Axxess Code at any time in Axxess’ discretion.
4. Referral Program. From time to time, Axxess may offer you with incentives to refer new Users to the Axxess community (the “Referral Program”). These incentives may come in the form of Axxess Credits, and Axxess may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Axxess Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.

10) Restricted Activities

With respect to User’s use of Axxess Solutions and User’s participation in the Services, User agrees that User will not:

1. (i) use any Confidential Information obtained from Axxess Solutions for User’s own benefit or for the benefit of any other third party; (ii) solicit the business of other Users unless such Users were already known prior to the date of this Agreement or independently developed by the User after the date hereof; or (iii) employ or solicit the employment of any employees of the Axxess; or (iv) participate, personally or financially, directly or indirectly, in competition with Axxess.

2. be an employee, partner, joint venturer, representative, agent, independent contractor, or franchisee of, or with, Axxess unless agreed upon in writing. User will have total control of the management of its person or business, subject to the provisions of this Agreement.
3. impersonate any person or entity;
4. violate any law, statute, rule, permit, ordinance or regulation;
5. interfere with or disrupt the Solutions or Services or Axxess Servers or networks connected to Axxess;
6. post information or interact with the Solutions or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
7. use the Solutions or Services in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
8. post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
9. forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Solutions or Services;
10. “frame” or “mirror” any part of the Solutions or Services, without Axxess’ prior written authorization or use meta tags or code or other devices containing any reference to Axxess in order to direct any person to any other web site for any purpose;
11. modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Solutions or Services or any software used on or for the Solutions or Services;
12. rent, lease, lend, sell, redistribute, license or sublicense the Solutions or Services or access to any portion of the Solutions or Services;
13. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Solutions or Services or its contents;

14. link directly or indirectly to any other web sites;
15. transfer or sell User’s account, password and/or identification to any other party;
16. discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation; or
17. cause any third party to engage in the restricted activities above.

11) Representations, Warranties and Agreements

By providing services as a User, User represents, warrants, and agrees that:

1. User possesses all appropriate licenses, approvals, and authority to provide service in all jurisdictions in which User provides services.
2. Any payment Professional receives for performing an Opportunity on behalf of an Organization through AxxessCARE will be based on the perimeters defined within AxxessCARE.
3. User will not make any misrepresentation regarding the Solutions or Services, Axxess, or User’s status as a User.
4. User will not attempt to defraud Axxess, or another User in connection with User’s provision of services. If Axxess suspects that User has engaged in fraudulent activity, we may suspend User’s account or levy a fee to serve as restitution to the defrauded party. All fraudulent activities will be prosecuted to the fullest extent of the law.
5. Professional agrees that we may obtain information about Professional, including Professional’s criminal           and     employment    records,           and Professional agrees to provide any further necessary authorizations to facilitate our access to such records during the term of this Agreement.
6. User will pay all applicable federal, state and local taxes based on User’s provision of services and any payments received by User.
7. In relation to AxxessCARE, Professional agrees that he or she (a) is solely responsible for determining the most effective, efficient and safe manner to perform each Opportunity; and (b) except as for the Services, will provide all necessary equipment, tools, and other materials at his or her own expense, necessary to perform the Opportunity.

8. In rendering services under this Agreement, as a Professional, you shall follow the Organization’s dress requirements. A Professional must complete all assigned visit notes within 48 hours after the visit.

12) Intellectual Property

1. Axxess’ Intellectual Property. All Axxess Solutions and Services, and any and all modifications, bug fixes, updates and releases provided by Axxess, and all worldwide intellectual property rights therein, are and shall remain the exclusive property of Axxess. The parties expressly agree that any and all work to be performed by Axxess under this Agreement shall not be considered works-made-for-hire, as that term is defined in the U.S. Copyright Act (17 U.S.C. § 101, et. seq.), and all ownership rights relating to the Solutions and Services and any modifications thereto resulting from the Solutions and Services shall remain vested in Axxess. User acknowledges and agrees that all intellectual property rights of whatever nature the Solutions and Services, the source code relating to the Solutions and Services, and any and all derivative works relating to the Solutions and Services, are and shall remain the property of Axxess, and nothing in this Agreement should be construed as transferring any aspects of such rights to Users or any third party. Axxess shall own all right and title to, and interest in and ownership of any and all User Data created and stored within the Solutions. Axxess shall have the right to use all such data for its own benefit subject to compliance with applicable law. User understands that it may be required to execute third party licenses, such as, but not limited to, the drug education database, in order to use the Solutions and Services, and that Axxess has provided User with sufficient information concerning all such third party licenses. User further agrees that it will not use third party software that interferes with the operations or functionality of the Solutions and Services and agrees to defend, indemnify, and hold harmless from any damages, costs, expenses, legal liability, non-functionality of the Solutions and Services, loss of use of the Solutions and Services, diminution of the functionality of the Solutions and Services, damage to the Solutions and Services, and any inaccuracy of Axxess’ data arising or resulting in whole or in part from User’s own third party software equipment.
2. Axxess Server. The parties agree that (i) Axxess is the record owner or leaseholder of the Axxess Server and that User has no interest or right to the Axxess Server except to the extent necessary to use the Solutions or Services hereunder, including User’s right to access the Axxess Server from time to time in connection with the Solutions and Services.
3. Trademarks and Publicity. All intellectual property rights related to Axxess Solution shall be owned by Axxess absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Solutions are the property of their respective owners. User acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by User to us are non-confidential and shall become the sole property of Axxess. Axxess shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to User.

13) Limitation of Liability; Disclaimer or Warranties

1. The use of the Solutions and Services is at User’s sole risk. Neither Axxess nor any of its affiliates, nor any of their respective officers, directors or employees, agents, third-party content providers, merchants, sponsors or the like, warrant that the Services will be uninterrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of the Services, or as to the accuracy, completeness, reliability, security or currency of the Solutions and Services.
2. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL AXXESS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOODWILL, EVEN IF AXXESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. AXXESS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST USER BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF AXXESS IN CONNECTION WITH THE SERVICES, AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE FEES PAID BY USER TO AXXESS HEREUNDER FOR THE SERVICES IN QUESTION IN THE MONTH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY USER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. USER ACKNOWLEDGES THAT THE FEES PAID BY USER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY AND EACH PARTY AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

3. Disclaimer of Warranties. AXXESS MAKES NO WARRANTY WITH RESPECT TO THE SERVICES OR THE SOLUTIONS AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF, OR INABILITY TO USE, THE SERVICES AND AXXESS SOLUTIONS, INCLUDING THE INFORMATION, DATA, SOFTWARE, SOLUTIONS OR PRODUCTS CONTAINED THEREIN OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. AXXESS DOES NOT GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SERVICES, THE DATA, OR ANY COMPONENT THEREOF. AXXESS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS OR DELAYS THEREIN. THE SERVICES, THE DATA, AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND USER’S USE OF THE SERVICES IS AT USER’S OWN RISK. User acknowledges that it has relied on no warranties other than the express warranties in this Agreement. The provisions of this Section 13 shall survive any termination or expiration of this Agreement. No representative, agent, employee or other person is authorized to make any modifications, extensions, or additions to this warranty.

4. Medicare Access. User acknowledges that certain functionality within the Solutions and Services is dependent upon the Medicare working file data system. If the Medicare working file system is down or not accessible, Axxess will not be liable for system Downtime, nor is User entitled to any refund during such Downtime.
5. Presumption of Satisfaction. All other provisions to the contrary notwithstanding, all services performed by Axxess under this agreement for which there is no written notice of deficiency given by the User within thirty (30) days, the performance of said service shall be conclusively presumed to have been satisfactorily performed.
6. Submission of Information. User shall strictly adhere and conform to the methods, procedures, policies and instructions issued by CMS (Centers for Medicare & Medicaid Services) and Axxess pertaining to the collection, recording and submission of all requested information to be submitted to Axxess for the purpose of performing the services under this agreement. It is understood and agreed that any deviation from same by User may result in the assessment and collection of additional fees by Axxess from the User. It is understood and agreed that all documents generated and work performed by Axxess pursuant to this agreement shall be based upon information furnished by the User, and Axxess assumes no responsibility or liability for the correctness of the information furnished to it by the User.
7. Axxess does not provide employment services, and Axxess is not a personnel recruiter. It is up to the Professional to decide whether or not to accept an Opportunity from an Organization, and it is up to the Organization to decide whether or not to offer an Opportunity to a Professional.. Axxess cannot ensure that a Professional will accept or complete an Opportunity assigned by an Organization. Axxess has no control over the quality of the Users matched though the Solutions or Services.
8. Axxess is not responsible for the conduct, whether online or offline, of any User of the Solutions or Services. User is solely responsible for User’s interactions with other Users. We do not procure insurance for, nor are we responsible for, any User. By using the Solutions or Services and participating in the Services, User agrees to accept such risks and agrees that Axxess is not responsible for the acts or omissions of Users within the Solutions or participating in the Services.
9. Axxess expressly disclaims any liability arising from the unauthorized use of User’s account. Should User suspect that any unauthorized party may be using User’s account or User suspects any other breach of security, User agrees to notify Axxess immediately.
10. It is possible for others to obtain information about User that User provides, publishes, or posts to or through the Solutions or Services (including any profile information User provides), sends to other Users, or shares while using the Solutions and Services, and to use such information to harass or harm User. Axxess is not responsible for the use of any personal information that User discloses to other Users while using the Solutions or through the Services. Axxess advises Users to carefully select the type of information that it posts on Solutions or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
11. Opinions, advice, statements, offers, or other information or content concerning Axxess or made available through the Solutions, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will Axxess be responsible for any loss or damage resulting from User’s reliance on information or other content posted by third parties, whether while using the Solutions or otherwise. Axxess reserve the right, but we have no obligation, to monitor the materials posted on the Solutions and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
12. Location data provided through the Solutions or Services is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Axxess, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed though the Solutions. Any of User’s Information, including geolocational data, User uploads, provides, or posts on the Solutions may be accessible to Axxess and certain Users of the Solutions and Services.

13. Axxess advises User to use the Solutions with a data plan with unlimited or very high data usage limits, and Axxess shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan User uses to access Axxess Solutions.

14) Indemnity

1. User will defend, indemnify, and hold Axxess including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of User’s use of the Solutions and participation in the Services, including: (1) User’s breach of this Agreement or the documents it incorporates by reference; (2) User’s violation of any law or the rights of a third party as a result of User’s own interaction with such third party; (3) any allegation that any materials that User submits to us or transmits through Axxess Solutions or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the Solutions and Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
2. No User has actual or apparent authority to sign agreements on behalf of Axxess or bind Axxess into a contract. User hereby agrees to promptly defend against any losses, claims, damages, liabilities or expenses but will not settle without consulting Axxess and obtaining its prior written consent. User will allow Axxess to participate, through separate counsel, in the defense of any such loss, claim or other action.
3. User and Axxess expressly agree that (1) this is not an employment agreement and does not create an employment or independent contractor relationship between User and Axxess; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. User has no authority to bind Axxess, and User undertakes not to hold itself out as an employee, agent or authorized representative of Axxess.

15) Term and Termination

1. This Agreement shall commence upon User’s creation of a User account and shall thereafter renew automatically for successive terms as outlined in the Service Order attached hereto until terminated as set forth herein.
2. Organization may terminate this Agreement with written notice of no less than ninety (90) days prior to the end of the Term as outlined in the Service Order attached hereto, incorporated herein, or referenced hereby. Organization will comply fully with all financial obligations of this Agreement and all successive renewal terms thereafter.

3. Professional may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice; and (b) immediately, without notice, for Axxess’ material breach of this Agreement.
4. Termination for Breach. Axxess may terminate this Agreement if User is in material breach of any term of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach. Without limiting the generality of the foregoing, failure to make any payment to Axxess when due is a material breach of this Agreement on the part of User.
5. Effect of Termination. Upon the expiration or termination of this Agreement, Axxess may terminate User’s ability to create new data and User acknowledges that, at and after such time, User will no longer have the ability to create new data. User will pay Axxess a recurring monthly fee of $299 per location/branch prior to User being granted read-only access to existing data. The fees set forth above do not include federal, state, or local taxes, and to the extent such taxes are due, User shall be liable for payment thereof. If at any time the read-only access fee is unpaid, Axxess may elect to cease providing read-only access under this Agreement until all overdue and unpaid fees are paid in full. After the first year of the read-only access, Axxess may increase fees annually. Suspended accounts are not entitled to the read-only access. All outstanding balances must be paid in full for Licensee to be entitled to read-only access.

6. The provisions of Section 1 through 2, Section 5 through 8 and Section 11 through 19 shall survive termination of this Agreement.

16) Confidential Information

1. User acknowledges that the Solutions and Services, including all documentation provided in connection therewith, and all screens and formats used in connection therewith, are the confidential information of Axxess and User shall not publish, disclose, display provide access to or otherwise make available Axxess Solutions or the Services, or documentation thereof, or any screens, formats, reports or printouts used, provided, produced or supplied from or in connection therewith, to any person or entity other than an employee or agent of User without the prior written consent of, and on terms acceptable to, Axxess; provided, however, that User may disclose to a governmental or regulatory agency or to customers of User any information expressly prepared for disclosure to such governmental or regulatory agency or to such User and User may make disclosures required by law.. Except as required by law, User shall not disclose use of the Services in any advertising or promotional materials without Axxess’ prior written consent to such disclosure, and approval of such materials.
2. Protection of Confidential Information. User acknowledges that the Solutions and Services are highly confidential and considered trade secrets of Axxess, the unauthorized disclosure of any part of which would result in serious injury to Axxess. User shall use its best efforts to maintain the security and confidentiality of the Solutions and Services, which precautions shall not be less stringent than those employed, or that reasonably should be employed, by User to protect its own most confidential information.
3. Confidentiality of Agreement. This Agreement and the terms hereof are confidential, and no information concerning the same shall be disclosed without written consent of the parties, except as may be necessary to comply with applicable laws and regulations.
4. Axxess Employees and Contractors. User will not employ any person that is employed by Axxess during the Term and for a period of twenty-four (24) months after termination of this Agreement. User will reimburse Licensor a one-time fee equivalent to two (2) year compensation for violation of this Paragraph 16.4
5. Equitable Relief. User understands that the unauthorized publication or disclosure of any part of the Solutions or Services, or the unauthorized use of the Solutions or Services, would cause irreparable harm to Axxess for which there is no adequate remedy at law. User therefore agrees that in the event of such unauthorized disclosure or use, Axxess may, at its discretion and at User’s expense, terminate this Agreement, obtain immediate injunctive relief or specific performance without an obligation to post bond or other security, or take such other steps as it deems necessary to protect its rights. If Axxess, in its reasonable, good faith judgment, determines that there is a material risk of such unauthorized disclosure or use, it may demand immediate assurances, satisfactory to Axxess, that there will be no such unauthorized disclosure or use. In the absence of such assurance, Axxess may take such steps as it deems necessary and may, in addition, terminate this Agreement. The rights of Axxess hereunder are in addition to any other remedies provided by law or in equity.
6. Confidentiality of Client Information. User acknowledges that it will have access to Client Information, written and oral, relating to Home Health Services. User acknowledges and agrees that that User will disclose such information only to authorized individuals and as permitted by HIPAA and applicable law.
7. Relationship to the Business Associate Agreement. The terms and conditions of the Business Associate Agreement in Addendum A are hereby incorporated into this Agreement. To the extent that the provisions of Addendum A regarding Client Information conflict with the provisions of this Agreement, the provisions of Addendum A prevail.

17) Miscellaneous

1. Waiver of Breach. The failure of either party to partially or fully exercise any right shall not prevent the subsequent exercise of such right. The waiver by either party of any breach shall not be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.

2. Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. User may not assign this Agreement without the prior written consent of Axxess or its successor. This Agreement and the rights and obligations created under it shall be binding upon and inure solely to the benefit of the parties hereto (and their affiliates and indemnified parties, as provided herein) and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended or should be construed to confer upon any other person any right, remedy, or claim under or by virtue of this Agreement.
3. Governing Law. This choice of law provision does not apply to the arbitration clauses contained in Sections 18 and 19, such arbitration clauses being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Sections 18 and 19, the interpretation of this Agreement shall be governed by Texas law, without regarding to the choice or conflicts of law provisions of any jurisdiction.
4. Any notice required to be given pursuant to this Agreement shall be in writing and shall be deemed duly given either (i) two (2) days after the date of mailing if sent by registered or certified mail, return receipt requested, or (ii) one (1) day after the date of mailing if sent by a national overnight courier service, to: Axxess, 16000 Dallas Parkway, Suite 700, Dallas, TX 75248 or, to User at the address provided during the registration process (iii) 24 hours after the time of sending if sent via electronic mail [email protected] or to User at the address provided during the registration process. Any party, by notice given as set forth above, may change the address to which subsequent notices are to be sent to such party.
5. By entering this Agreement, User agrees to and does hereby submit to the personal jurisdiction of the courts in or for the State of Texas in the event any legal action is commenced by Axxess or its successor to enforce any rights arising hereunder.
6. Force Majeure. Except for Organization’s payment obligations, neither party shall be responsible or liable for any losses arising out of any delay in or interruption of the performance of its obligations under this Agreement due to any act of God, act of governmental authority, act of the public enemy or due to war or terrorism, the outbreak or escalation of hostilities, riot, fire, flood, civil commotion, insurrection, labor difficulty (including, without limitation, any strike, or other work stoppage or slow down), severe or adverse weather conditions, communications line failure, or other similar cause beyond the reasonable control of the party so affected at the time such cause arises.

7. The headings in this Agreement are for convenience only and shall not be used to alter or limit the interpretation of any provision hereof.
8. Entire Agreement. This Agreement, together with all service orders, schedules, addendums, exhibits and amendments hereto, constitutes the entire agreement of the parties and supersedes all prior discussion and correspondence between them with respect to the subject matter hereof.
9. Joint and Several Obligations. All Organization’s payment obligations shall be made on the basis of joint and several liabilities for such obligations. Organization agrees that it has received adequate consideration in connection with the respective obligations hereunder.
10. Compliance with Applicable Laws. Axxess shall provide the Services in material compliance with all applicable federal, state and local laws. While Axxess Solutions and the Services have been designed to be compliant with Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and all relevant regulations, User is solely responsible for use of the Solutions and the Services in compliance therewith and all other applicable federal, state and local laws..
11. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
12. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.
13. Non-exclusivity. This Agreement shall not be deemed to create an exclusive relationship between User and Axxess. User shall be entitled to use other parties to perform services similar to the Services covered hereby. Axxess agrees and acknowledges that User does not guarantee any minimum amount of work nor does it guarantee any minimum amount of revenue to Axxess hereunder. Likewise, Axxess may provide the Services and/or Axxess Solutions to other customers.

14. Medicare Notification. Axxess will complete all applicable provider authorization agreement on behalf of User in order to send the same to User’s Medicare Fiscal Intermediary to provide Axxess with EDI access to User claims and receive electronic remittance advices on behalf of User. User is not under investigation for any activity that may be considered to be fraudulent, has not been suspended or excluded from participation in the Medicare and Medicaid Program or other state or federal health care programs, and will immediately notify Axxess in writing of any threatened or actual suspension or exclusion from participation in the Medicare or Medicaid programs or other state or federal health care programs.

15. Warranty of Authority. Each User represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and has the requisite power and authority to execute and deliver, and to perform its obligations hereunder. Each User represents and warrants to the other that this Agreement has been duly authorized, executed, and delivered by such User and constitutes a valid and binding obligation of such User enforceable against such User according to its terms.
16. Modifications to Agreement: Axxess may in its discretion modify the terms and conditions of this Agreement. Axxess will provide written notice of any material changes to the terms and conditions at least thirty (30) days in advance or any longer period required under applicable law by emailing the User’s e-mail of record.  Your continued use of the Axxess Solutions or Services for more than thirty (30) days after notice shall constitute your consent and acceptance of the change.  However, no such modification shall apply to an arbitrable dispute of which Axxess had actual notice on or before the effective date of the modified Agreement.  Axxess will post the updated Agreement on Axxess | Terms Of Service.

If you have any questions regarding Axxess Solutions Platform or Services, please contact our Customer Support Team through our Help Center.

18) Arbitration Provision for Professionals Using AxxessCARE

Important Note Regarding this Arbitration Provision:

• Except as provided below, arbitration does not limit or affect the legal claims you may bring against Axxess. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
• Arbitration is a process of private dispute resolution that does not involve the civil court, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
• IMPORTANT: This Arbitration Provision will require you to resolve any covered legal claim that you may have against Axxess or an Organization on an individual basis, except as provided below, pursuant to the Agreement unless you choose to opt out of the Arbitration Provision. Except as provided below, this Arbitration Provision will preclude you from bringing any class, collective or representative action (other than actions under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq. (“PAGA”)) against Axxess or an Organization, and also precludes you from participating in or recovering relief under any current or future class, collective, or representative (non-PAGA) action brought against Axxess by someone else.

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO       CONTAIN      A         COMPLETE   EXPLANATION        OF       THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS INCLUDING BUT NOT LIMITED TO AN ATTORNEY REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.

i. Mediation

In an attempt to amicably resolve disputes before they go to arbitration, User and Axxess agree that any otherwise arbitrable claim shall be mediated initially, and if mediation fails to result in a formal settlement of the dispute, then the parties shall proceed to final and binding arbitration. The statute of limitations shall be tolled during any mediation conducted pursuant to this Arbitration            Provision.        The      mediation        shall    be        conducted        by        JAMS (www.jamsadr.com). User and Axxess will bear its own costs in the mediation, including attorneys’ fees, and one-half of the cost of the mediator.

ii. Arbitration.

This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving interstate commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.

Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that m ust be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.

Except as provided in Section 18(vI), below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver or PAGA Waiver below, including their enforceability, revocability or validity.

Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between you and Axxess as well as all disputes between you Axxess’ fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Axxess, including termination of the relationship. Axxess and Professional agree that that Organization shall be an intended third party beneficiary under this Arbitration Provision. As a result, any claims or disputes between Professional and Organization shall also be covered by this Arbitration Provision. This Arbitration Provision also applies, without limitation, to disputes regarding privacy, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation,             breaks and      rest      periods,           expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Axxess and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.

This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.

iii. Limitations               on             How             This              Agreement               Applies.

The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply: A representative action brought on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction; Claims for workers compensation, state disability insurance and unemployment insurance benefits; Regardless of any other terms of this Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration; Disputes that may not be subject to a predispute arbitration agreement pursuant to applicable Federal law or Executive Order are excluded from the coverage of this Arbitration Provision; Disputes regarding your, or Axxess’ intellectual property rights; This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the

Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2010 (Pub.L. 111-118), section 8102 of the Department of Defense (“DoD”) Appropriations Act for Fiscal Year 2011 (Pub. L. 112-10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.

iv. Selecting The Arbitrator        and        Location        of       the        Arbitration.

The arbitrator shall be selected by mutual agreement of the parties. Unless you and Axxess mutually agree otherwise, the arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the parties cannot agree on an arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply; however, if there is a conflict between the JAMS Rules and this Agreement, this Agreement shall govern. Those rules are available  here: http://www.jamsadr.com/rules-streamlined-arbitration/ The location of the arbitration proceeding shall be no more than 45 miles from the place where you last performed an Opportunity under this Agreement, unless each party to the arbitration agrees in writing otherwise.

v. Starting the      

All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to Axxess shall be provided to [email protected]. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.

vi. How Arbitration      Proceedings    Are     

In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the arbitrator.

You and Axxess and Organization agree to resolve any dispute that is in arbitration on an individual basis only, and not on a class, collective action, or representative basis (“Class Action Waiver”). The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. Notwithstanding any other provision of this Agreement, the Arbitration Provision or the JAMS Streamlined Arbitration Rules & Procedures, disputes regarding the enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.

While Axxess will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, Axxess shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.

Private                                  Attorneys                                 General                                Act.

Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) you, Axxess and Organization agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration , and (2) for any claim brought on a private attorney general basis i.e., where you are seeking to pursue a claim on behalf of a government entity both you, Axxess and Organization agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (“PAGA Waiver”). Notwithstanding any other provision of this Agreement or the Arbitration Provision, disputes regarding the enforceability, revocability or validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the parties’ attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not in arbitration.

vii. Paying for      

Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (e.g. a party prevails on a statutory claim that provides for the award of reasonable attorney fees to the prevailing party). However, Axxess or Organization will pay the arbitrator’s and arbitration fees.

viii. The Arbitration Hearing           and     

The parties will arbitrate their dispute before the arbitrator, who shall confer with the parties regarding the conduct of the hearing and resolve any disputes the parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the parties or as ordered by the arbitrator, any party will have the right to prepare, serve on the other party and file with the arbitrator a brief. The arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.

ix. Your Right   To        Opt      Out      Of       

Arbitration is not a m andatory condition of your contractual relationship with Axxess. If you do not want to be subject to this Arbitration Provision, you m ay opt out of this Arbitration Provision by notifying Axxess in writing of your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreem ent is executed by you, electronic m ail to [email protected] , stating your nam e and intent to opt out of the Arbitration Provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to:

Axxess
Attn: Legal Dept.
16000 Dallas Parkway
Suite 700
Dallas, TX 75248

In order to be effective, the letter under option (2) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by options (1) or (2), will be filed with a copy of this Agreement and maintained by Axxess. Should you not opt out of this Arbitration Provision within the 30day period, you and Axxess shall be bound by the terms of this

Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-out of coverage under this Arbitration Provision.

x. Full and Complete Agreement Related To Formal Resolution of Disputes;

Enforcement                                 Of                             This                                Agreement.

This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of or relating to this Agreement. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.

19) Dispute Resolution and Arbitration Agreement for Users

1. Any dispute between the parties arising under or relating to this Agreem ent that cannot be resolved by the parties them selves shall be subm itted to m ediation in Dallas, Texas, adm inistered by and conducted in accordance with the Rules of Com m ercial Mediation of the Am erican Arbitration Association. Each party will bear its own costs in the m ediation, including attorneys’ fees, and one-half of the cost of the m ediator.
2. Binding Arbitration. Any dispute that rem ains unresolved after m ediation will be resolved by final and binding arbitration in Dallas, Texas before a single arbitrator conducted by and in accordance with the Rules of Com m ercial Arbitration of the Am erican Arbitration Association. The arbitrator shall not be the sam e person as the m ediator. Each party shall bear its own costs in the arbitration, including attorneys’ fees, and each party shall bear one-half of the cost of the arbitrator.
3. Arbitrator’s Authority. The arbitrator shall have the authority to award such dam ages as are not prohibited by this Agreem ent and m ay, in addition and in a proper case, declare rights and order specific perform ance, but only in accordance with the term s of this Agreem ent.
4. Any party m ay apply to a court of general jurisdiction to enforce an arbitrators’ award, and if enforcem ent is ordered, the party against whom the order is issued shall pay the costs and expenses of the other party in obtaining such order, including reasonable attorneys’ fees.
5. Notwithstanding the provisions of Sections 16(a) and 16(b) above, any action by Axxess to enforce its rights under Section 11 or 15 of this Agreem ent or to enjoin any infringem ent of the sam e by User, m ay be com m enced in the state or federal courts of Texas, and each party consents to personal jurisdiction and venue in such courts for such actions.
6. YOU AND AXXESS MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth above. This agreem ent to arbitrate survives after the Agreem ent term inates or your relationship with Axxess ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT    PERMITTED.     Except      as      expressly        provided       below,        this Arbitration Agreem ent applies to all Claim s (defined below) between you and Axxess, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, em ployees, agents, or shareholders.

7. Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”), NOT RESOLVED THROUGH MEDIATION, SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND AXXESS. These Claim s include, but are not lim ited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreem ent and prior versions thereof (including the breach, term ination, enforcem ent, interpretation or validity thereof); Axxess Solution; the Services; any other goods or services m ade available through Axxess Solutions; your relationship with Axxess; the threatened or actual suspension, deactivation or term ination of your User Account or this Agreem ent; paym ents m ade by you or any paym ents m ade or allegedly owed to you; any prom otions or offers m ade by Axxess; any city, county, state or federal wage-hour law; trade secrets; unfair com petition; discrim ination; harassm ent; retaliation; fraud; defam ation; em otional distress; breach of any express or im plied contract or covenant; claim s arising under federal or state consum er protection laws; claim s arising under antitrust laws; claim s arising under the Telephone Consum er Protection Act and Fair Credit Reporting Act; and claim s arising under the Uniform Trade Secrets Act; Civil Rights Act of 1964; Am ericans With Disabilities Act; and state statutes, if any, addressing the sam e or sim ilar subject m atters; and all other federal and state statutory and com m on law claim s. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreem ent) shall be decided by the arbitrator, except as expressly provided below.

8. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND AXXESS ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreem ent is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claim s and disputes which by the term s of this Arbitration Agreem ent are expressly excluded from the requirem ent to arbitrate.

9. Prohibition of Class Actions and Non-Individualized Relief. YOU UNDERSTAND AND AGREE THAT YOU AND AXXESS MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND AXXESS BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding any other provision of this Agreem ent, the Arbitration Agreem ent or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver m ay be resolved only by a civil court of com petent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determ ination that the Class Action Waiver is unenforceable as to any Claim s, the class, collective, and/or representative action on such Claim s m ust be litigated in a civil court of com petent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claim s to the fullest extent possible.

10. 1 Severability. In the event that any portion of this Arbitration Agreem ent is deem ed illegal or unenforceable, such provision shall be severed and the rem ainder of the Arbitration Agreem ent shall be given full force and effect.

By using Axxess’ Service and Solutions, User expressly acknowledges that User has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that User agrees to be bound by the terms and conditions of the Agreement, and that User is legally competent to enter into this Agreement with Axxess. IF USER DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, USER MAY NOT USE OR
ACCESS Axxess Solutions

Axxess Privacy Policy

Last Updated: April 26, 2021

At Axxess, we are a technology company that provides software, services and solutions that empowers healthcare organizations to deliver the best quality care to patients in their homes.
Scope of this Privacy Policy

Axxess (“Axxess,” “we,” “our,” and/or “us”) values the privacy of individuals who use our application, websites, and related services (collectively, the “Solutions”). This privacy policy (the “Privacy Policy”) explains how we collect, use, and share information from a Professional or Organization, including a prospective Professional or Organization (“User”). Beyond the Privacy Policy, User’s use of Axxess is also subject to our Terms of Service (www.axxess.com/terms).

1. Information We Collect

1. Information You Provide to Us
   1. Registration Information. When User signs up for an Axxess account, User gives us User’s name, email address, and phone number. If User decides to sign up for Axxess using User’s Facebook account, we will also get basic information from User’s Facebook profile like User’s name, gender, profile photo, and Facebook friends.
   2. User Profile Information. When User joins the Axxess community, User can create an Axxess Profile to share fun facts about User, and discover mutual friends and interests. Filling out a profile is optional, and User can share as little or as much as User wants. User’s name and profile photos are always part of User’s profile. Read more below about how User can control who sees User’s profile. User can also add a business profile to User’s account, which requires a designated business email address and payment method.
   3. Payment Method. When an Organization adds a credit card or payment method to Organization’s Axxess account, a third party that handles payments for us will receive the Organization’s card information. To keep the Organization’s financial data secure, we do not store full credit card information on our servers.
   4. Communications. If User contacts us directly, we may receive additional information about User. For example, when User contacts our Customer Support Team, we will receive User’s name, email address, phone number, the contents of a message or attachments that User may send to us, and other information User chooses to provide.
   5. Application Information. If Professional decides to join our Professional community, in addition to the basic registration information, we ask Professional for Professional’s date of birth, physical address, Social Security number, driver’s license information, and any other applicable business license or permitting information. We provide this information to a third party vendor so that the vendor can run a background check.
   6. Payment Information. We require Professionals to provide payment information such as a Professional’s bank routing information. This payment information is provided to a third party vendor that facilitates payment from an Organization to a Professional after a Professional performs an Opportunity and submits his or her visit notes.
2. Information We Collect When You Use the Solutions
   1. Location Information. Axxess is all about empowering Professional and Organizations. To do this, we need to know where you are. When you use the Solutions, we receive your location. We may also collect the precise location of your device when the Solutions is running in the foreground or background. If you label certain locations, such as “home” and “work,” we receive that information, too.
   2. Your location information is necessary for things like matching Professionals with nearby Opportunities and Organizations. In addition to the reasons described above, Professionals location information is necessary for Electronic Visit Verification (EVV) services. If you give us permission through your device settings or the Solutions, we may collect your location while the app is off to identify promotions or service updates in your area.
   3. Device Information. Axxess receives information from Users’ devices, including IP address, web browser type, mobile operating system version, phone carrier and manufacturer, application installations, device identifiers, mobile advertising identifiers, push notification tokens, and, if you register with your Facebook account, your Facebook identifier. We collect mobile sensor data from devices to improve location accuracy and analyze usage patterns.
   4. Usage Information. To help us understand how you use the Solutions and Services and to help us improve it, we automatically receive information about your interactions with the Solutions and Services, like the pages or other content you view, your actions within Axxess apps, and the dates and times of your visits.
   5. Call and Text Information. We work with a third party partner to facilitate phone calls and text messages. We receive information about these communications including the date and time of the call or SMS message, the parties’ phone numbers, and the content of any SMS messages.
   6. User Feedback. At Axxess, we want to make sure Users are always delighted. Professionals and Organizations may rate and review each other at the end of every opportunity. We receive information about ratings and reviews and, as we explain below, give Organizations information about Professionals ratings and reviews and vice versa.
   7. Address Book Contacts. If you permit Axxess to access the address book on your device through the permission system used by your mobile platform, we may access and store names and contact information from your address book to facilitate invitations and social interactions that you initiate through the Solutions and for other purposes described in this privacy policy or at the time of consent or collection.
   8. Information from Cookies and Similar Technologies. Axxess collects information through the use of “cookies”, tracking pixels, and similar technologies to understand how you navigate through the Solutions and interact with Axxess advertisements, to learn what content is popular, and to save your preferences. Cookies are small text files that web servers place on your device; they are designed to store basic information and to help websites and apps recognize your browser. We may use both session cookies and persistent cookies. A session cookie disappears after you close your browser. A persistent cookie remains after you close your browser and may be accessed every time you use the Solutions. You should consult your web browser(s) to modify your cookie settings. Please note that if you delete or choose not to accept cookies from us, you will be missing out on certain features of the Solutions.
3. Information We Collect from Third Parties
   1. Third Party Services. If you choose to register for Axxess or otherwise link your Axxess account with a third party’s service (such as Facebook), we may receive the same type of information we collect from you (described above) directly from those services.
   2. Third Party Partners. We may receive additional information about you, such as demographic data, payment information, or fraud detection information, from third party partners and combine it with other information that we have about you.
   3. Enterprise Programs. If you are associated with a company, university, or organization, and the company, university, or organization participates in one of our enterprise programs, we may receive information about you, such as your email address, from your participating organization.
   4. Background Information on Professionals. Axxess works with third party partners to perform criminal background checks on Professionals, and we receive information from them such as publicly available information about a Professional’s background or criminal history.
4. Tracking and Do-Not-Track Settings
   1. We track User’s online activities over time and across third-party websites or online services.
   2. We support the Do Not Track (DNT) browser setting. DNT is a preference User can set in User’s browser’s settings to let the websites User visits know that User does not want the websites collecting User’s personal information.

2. How We Use the Information We Collect

1. We use the information we collect from all Users to:
   1. Connect Professionals with Organizations;
   2. Provide, improve, expand, and promote the Solutions;
   3. Analyze how the Axxess community uses the Solutions;
   4. Communicate with you, either directly or through one of our partners, including for marketing and promotional purposes;
   5. Personalize the Axxess experience for you and your friends and contacts;
   6. Send you text messages and push notifications;
   7. Facilitate transactions and payments;
   8. Provide you with customer support; and
   9. Find and prevent fraud.
2. Additionally, we use the information we collect from Users for the following purposes related to using the Solutions:
   1. Sending emails and text messages to Users who have started the application process regarding the status of their application;
   2. Determining a Professional’s eligibility to provide services for Organizations; and
   3. Notifying Users about opportunities, pricing and similar updates.

3. How We Share the Information We Collect

1. Sharing between Users. Users that have been matched for an opportunity are able to see basic information about each other, such as names, photo, ratings, and any information they have added to their Profiles. Users who connect their Axxess accounts to Facebook will also be able to see their mutual Facebook friends. User’s ratings are shared with other Users on a weekly basis. We de-identify the ratings and feedback, but we can’t rule out that a User may be able to identify the User that provided the rating or feedback.
2. Sharing Between Axxess and Third Parties: API and Integration Partners. If you connect to the Solutions through integration with a third party service, we may share information about your use of the Solutions that third party. We may share your information with our third party partners in order to receive additional information about you. We may also share your information with third party partners to create offers that may be of interest to you.
3. Third Party Services. The Solutions may allow you to connect with other websites, products, or services that we don’t have control over (for example, we may give you the ability to order durable medical equipment (DME) or supplies from within the Solutions). If you use these services, we will provide the third party with information about you to allow them to provide the service to you (for example, we would give the DME provider your name, phone number). We can’t speak to the privacy practices of these third parties, and we encourage you to read their privacy policies before deciding whether to use their services.
4. Service Providers. We work with third party service providers to perform services on our behalf, and we may share your information with such service providers to help us provide the Solutions.
5. Enterprise Partners. If you participate in an enterprise we may provide your organization’s account holder with information about your use of the Solutions, including details such as date, time, and geolocational data. If you change organizations, it is your responsibility to update your Profile with the new information. (Please remember to check and set your designation settings accordingly.)
6. International Partners. We’ve partnered with several services around the globe so Users can continue to use the Solutions abroad. When you use the Solutions abroad, we may share the same information that is shared between matched Users on the Solutions. In some cases we are unable to mask your phone number if you call an international User, so please keep that in mind before using this feature.
7. Other Sharing. We may share your information with third parties in the following cases:
   1. While negotiating or in relation to a change of corporate control such as a restructuring, merger or sale of our assets
   2. If a government authority requests information and we think disclosure is required or appropriate in order to comply with laws, regulations, or a legal process;
   3. With law enforcement officials, government authorities, or third parties if we think doing so is necessary to protect the rights, property, or safety of the Axxess community, Axxess, or the public;
   4. If you signed up for a promotion with another User’s referral or promotion code, with your referrer to let them know about your redemption of or qualification for the promotion;
   5. To provide information about the use of the Solutions to potential business partners in aggregated or de-identified form that can’t reasonably be used to identify you; and
   6. Whenever you consent to the sharing.

4. Your Choices

1. 1. Email Subscriptions. User can always unsubscribe from our commercial or promotional emails but we will still send User transactional and relational emails about User’s account use of the Solutions.
   2. Text Messages. When User opts-in to the texting service, we will send User an SMS message to confirm User’s signup. User can cancel the SMS service at any time. Just text “STOP” to 299377. After User sends the SMS message “STOP” to us, we will send User an SMS message to confirm that User has been unsubscribed. After this, User will no longer receive SMS messages from us. If User wants to join again, User just signs up as User did the first time and we will start sending SMS messages to User again. If at any time User forgets what keywords are supported, just text “HELP” to 299377. After User sends the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe. We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, U.S. Cellular, Alltel, Boost. Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). As always, message and data rates may apply for any messages sent to User from us and to us from User. If User has any questions about User’s text plan or data plan, it is best to contact User’s wireless provider. For all questions about the services provided by this short code, User can send an email to [email protected].
   3. Push Notifications. User can opt out of receiving push notifications through User’s device settings. Please note that opting out of receiving push notifications will impact User’s use of the Solutions (such as receiving a notification that an Opportunity is available).
   4. Profile Information. While User’s name will always be shared with other Users, User can delete any additional information that User added to User’s profile at any time if User doesn’t want other Users to see it. Organizations will always be able to see Professionals’ names, rating, and profile photos.
   5. Location Information. While Professional can prevent Professional’s device from sharing location information at any time through Professional’s device’s operating system settings, Professional’s location is core to the Solutions and without it we can’t provide our services to Professional.
   6. Location Information. While Professional can prevent Professional’s device from sharing location information at any time through Professional’s device’s operating system settings, Professional’s location is core to the Solutions and without it we can’t provide our services to Professional.

Editing and Accessing Your Information. You can review and edit certain account information by logging in to your account settings and profile. If would like to terminate your Axxess account, please contact us through our Help Center with your request. If you choose to terminate your account, we will deactivate it for you but may retain information from your account for a certain period of time and disclose it in a manner consistent with our practices under this Privacy Policy for accounts that are not closed. We also may retain information from your account to collect any fees owed, resolve disputes, troubleshoot problems, analyze usage of the Solutions, assist with any investigations, prevent fraud, enforce our Terms of Service, or take other actions as required or permitted by law.

5. Other

1. Data Security. We are committed to protecting the data of the Axxess community. Even though we take reasonable precautions to protect User Data, no security measures can be 100% secure, and we cannot guarantee the security of User Data.
2. Children’s Privacy. Axxess is not directed to children, and we don’t knowingly collect personal information from children under 18. If we find out that a child under 18 has given us personal information, we will take steps to delete that information. If User believes that a child under the age of 18 has given us personal information, please contact us at our Help Center
3. Changes to Our Privacy Policy. We may make changes to this Privacy Policy from time to time. If we make any modifications, we will let User know through the Solutions, by email, or other communication. Such modifications shall be binding on User only upon User’s acceptance of the modified policy, as evidence by User’s scrolling to the bottom of a window containing the modified policy and clicking “I agree.” The date on which User clicks “I agree” shall be the effective date of the modified policy between User and Axxess. Continued use of Axxess Solutions or Services after User acknowledges notice and acceptance of any such modifications shall constitute User’s consent to such changes.
4. Contact Information. Feel free to contact us at any time with any questions or comments about the Privacy Policy, User’s Information, our use and sharing practices, or your consent choices by contacting our Help Center

6. Lead Generation Forms

Our lead generation form collects your full name, email address and the company where you work. This information is used to establish or determine whether we have an existing business relationship with you. It is used solely for that purpose and we do not sell your information to anyone.

By using Axxess’ Service and Solutions, User expressly acknowledges that User has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that User agrees to be bound by the terms and conditions of the Agreement, and that User is legally competent to enter into this Agreement with Axxess. IF USER DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, USER MAY NOT USE OR ACCESS Axxess Solutions

Addendum A

HIPAA Business Associate Agreement

Last Updated: April 26, 2021

This Addendum A to the Axxess Service Level Agreement (the “Addendum”) is effective as of the date of signing of the Axxess Service Level Agreement and is made by and between the User, as defined in the Axxess Service Level Agreement, (“Covered Entity) and Axxess Technology Solutions, Inc. (“Business Associate”) (“Covered Entity” and “Business Associate” are, at times, hereinafter referred to jointly as the “Parties”).

WHEREAS, Covered Entity and Business Associate are required to comply with the HIPAA Privacy Rule, the HIPAA Security Rule, the HITECH Act and its implementing regulations (collectively, the “HIPAA Regulations”);

WHEREAS, Business Associate provides certain services to Covered Entity pursuant to the Axxess Service Level Agreement between the Parties (the “Axxess SLA”);

WHEREAS, in connection with Business Associate’s performance of services for Covered Entity, Business Associate will create, receive and/or maintain health information related to an Individual that constitutes Protected Health Information within the meaning of the HIPAA Regulations;

WHEREAS, this Addendum is intended to ensure that Business Associate will establish and implement safeguards for such PHI consistent with the HIPAA Regulations;

NOW THEREFORE, in consideration of the mutual promises and obligations set forth below, the adequacy and sufficiency of which hereby are acknowledged, the Parties agree as follows:

• Definitions

1. 1. 1. “C.F.R.” means the Code of Federal Regulations. A reference to a C.F.R. section means that section as amended from time to time; provided that if future amendments change the designation of a section referred to herein, or transfer a substantive regulatory provision referred to herein to a different section, the section references herein shall be deemed to be amended accordingly.
      2. “Designated Record Set” means records, if any, created, received, or maintained by Business Associate for Covered Entity which Business Associate or Covered Entity uses, in whole or in part, to make decisions about an Individual, including, but not limited to, records related to enrollment, contributions, claims processing, and claims payment.
      3. “Discover,” with respect to a Security Breach, means knowledge by any member of Business Associate’s workforce (as defined in 45 C.F.R. 160.103) other than the person responsible for the Security Breach that the Security Breach has occurred.
      4. “HIPAA Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information, codified at 45 C.F.R. Parts 160 and 164, Subparts A and E, as authorized by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
      5. “HIPAA Security Rule” means the Security Standards for Protected Health Information, codified at 45 C.F.R. pts. 160, 162, and 164, as authorized by HIPAA.
      6. “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act, codified at 42 U.S.C. § 17931-17953.
      7. “Individual” means a person who is the subject of Covered Entity’s protected health information.
      8. “Limited Data Set” means PHI that excludes the following direct identifiers of the Individual and of relatives, employers, or household members of the Individual: (i) names; (ii) postal address information, other than town or city, State, and zip code; (iii) telephone numbers; (iv) fax numbers; (v) electronic mail addresses; (vi) Social Security numbers; (vii) medical record numbers; (viii) health plan beneficiary numbers; (ix) account numbers; (x) certificate/license numbers; (xi) vehicle identifiers and serial numbers, including license plate numbers; (xii) device identifiers and serial numbers; (xiii) web Universal Resource Locators (URLs); (xiv) Internet Protocol (IP) address numbers; (xv) biometric identifiers, including finger and voice prints; and (xvi) full face photographic images and any comparable images.
      9. “Protected Health Information” or “PHI” means any information related to an Individual’s past, present, or future physical or mental health condition, any treatment for that condition, and any payment for that treatment which information identifies the Individual or could reasonably be used to identify the Individual.
      10. Required By Law” means that a mandate contained in law, including a statute, regulation, court order, or subpoena, and that is enforceable in a court of law compels the use or disclosure of PHI
      11. “Secretary” means the Secretary of the U.S. Department of Health and Human Services and his designees.
      12. “Security Breach” means (i) the unauthorized access to, or acquisition, use, disclosure, of Covered Entity’s unsecured PHI, whether in paper or electronic form; that compromises the PHI, or (ii) the successful interference with system operations in an information system containing Covered Entity’s PHI. The term does not include (1) disclosure of PHI to an unauthorized person in circumstances where that person would not reasonably have been able to retain the information; (2) good faith unintentional access to, or acquisition or use of, PHI by Business Associate’s employees, agents or subcontractors in the course of such person’s performance of the Services provided that such PHI is not further accessed, acquired, used, or disclosed by any person, or (3) unauthorized access to, or acquisition, use, or disclosure, of Business Covered Entity’s unsecured PHI, whether in paper or electronic form, that results in a low probability of compromise as determined by Business Associate’s risk assessment conducted in accordance with 45 C.F.R. pt. 164.402.
      13. “Unsecured PHI” means all PHI except (1) PHI in electronic form that is encrypted consistent with regulations promulgated by HHS, or that has been subject to disposal in a manner that renders the information irretrievable, or (2) PHI in paper form that has been shredded, burned or otherwise rendered irrecoverable.
      14. Capitalized terms that are not defined in this Addendum shall have the same meaning as provided in the HIPAA Regulations.

• Business Associate’s Use And Disclosure Of PHI

1. 1. 1. Services Provided. Business Associate agrees to create, use, maintain, request, receive and disclose PHI: (1) only to the minimum extent necessary to provide the services described in the Axxess SLA; (2) only in a manner that is consistent with the HIPAA Regulations, and applicable state law (unless preempted by the HIPAA); and (3) consistent with the “minimum necessary” standard in 45 C.F.R. pt. 164.502(b). Business Associate agrees not to use or further disclose PHI other than as permitted or required by this Addendum or by applicable law
      2. Disclosure To Other Users. For the avoidance of confusion, Business Associate may disclose PHI, in accordance with the requirements of this Addendum and the HIPAA Regulations, to Professionals, as defined in the Axxess SLA, providing Home Health Services, as defined in the Axxess SLA, for a User and to an Organization, as defined in the Axxess SLA, on whose behalf a User is providing Home Health Services.
      3. Proper Management And Administration Of Business Associate.
         1. Business Associate may use PHI for its own proper management and administration or to carry out its legal responsibilities
         2. Business Associate may disclose PHI for its own proper management and administration, or to carry out its legal responsibilities, if (a) the disclosure is Required By Law, or (b) Business Associate ensures that the person or entity to whom PHI is disclosed under this paragraph will (i) maintain the confidentiality of the information disclosed, (ii) use or further disclose such information only as Required By Law or for the purpose for which it was disclosed to such person, and (iii) immediately notify Business Associate of any compromise of the confidentiality of the information.
      4. Prohibited Conduct: Except as permitted by the HIPAA Privacy Rule or pursuant to a HIPAA-compliant authorization obtained by Covered Entity from the Individual, Business Associate will not receive, directly or indirectly, any remuneration in exchange for any of the Individual’s PHI. Business Associate will not use any Individual’s PHI for marketing or research purposes (as those terms are defined by the HIPAA Privacy Rule) without Covered Entity’s prior, written approval and without obtaining all required authorizations from the Individual.
      5. Delegated Duties: To the extent this Addendum requires Business Associate to carry out one or more of Covered Entity’s obligation(s) under the HIPAA Privacy Rule, Business Associate shall comply with the requirements of the HIPAA Privacy Rule that apply to the Covered Entity in the performance of such obligation(s).

• Business Associate’s Duties Regarding The Exercise Of Individual Rights

1. 1. 1. Individual’s Access To PHI. Covered Entity has access, as described in the Axxess SLA, to all PHI maintained by Business Associate on Covered Entity’s behalf so that Covered Entity may provide access to an individual to PHI in a Designated Record Set in accordance with 45 C.F.R. pt. 164.524. If and to the extent Covered Entity does not have access to such a PHI, Business Associate will make such PHI available within the time frame required by the HIPAA Privacy Rule, to enable Covered Entity, to comply with 45 C.F.R. pt. 164.524 in connection with an Individual’s request for access to PHI.
      2. Amendment Of PHI. Covered Entity has access, as described in the Axxess SLA, to all PHI maintained by Business Associate on Covered Entity’s behalf so that Covered Entity may amend an individual’s PHI in a Designated Record Set in accordance with 45 C.F.R.. pt. 164.526. If and to the extent Covered Entity does not have access to such PHI. Business Associate will take all steps necessary to effectuate the amendment of PHI and as otherwise necessary to enable Covered Entity to comply with 45 C.F.R. pt. 164.526 in connection with an Individual’s request to amend PHI.
      3. Accountings Of Disclosures Of PHI. Within the time frame required by the HIPAA Privacy Rule, Business Associate will provide Covered Entity with all information in Business Associate’s possession necessary to enable Covered Entity to comply with 45 C.F.R. pt. 164.528 in connection with an Individual’s request for an accounting of disclosures of PHI.

• Business Associate’s Duties Regarding Safeguards For PHI

1. 1. 1. Safeguards. Business Associate shall implement technical, physical, and administrative safeguards for PHI that are appropriate to Business Associates’ size, the complexity of its operations and the nature and scope of its activities to protect against reasonably foreseeable risks to the security, confidentiality and integrity of PHI which risks could result in the unauthorized disclosure, use, alteration or destruction of PHI. Business Associate represents and warrants that, with respect to electronic PHI, it will comply with the requirements contained in parts 164.308 (Administrative Safeguards), 164.310 (Physical Safeguards), 164.312 (Technical Safeguards), and 164.316 (Policies and Procedures) of the HIPAA Security Rule.
      2. Business Associate’s Agents And Subcontractors. Business Associate shall obtain reasonable assurances in writing from any agent or subcontractor to whom Business Associate discloses PHI, or who creates or receives PHI on Business Associate’s behalf, that the agent or subcontractor (i) will comply with the restrictions and conditions on the use and disclosure of PHI which this Addendum imposes on Business Associate, (ii) will implement reasonable and appropriate safeguards to protect Covered Entity’s PHI received from Business Associate, and (iii) will promptly notify Business Associate of any Security Breach involving Covered Entity’s PHI. Business Associate will not disclose PHI to any agent or subcontractor except as permitted by this Addendum.
      3. Reporting A Security Breach. Business Associate will report to Covered Entity any unauthorized use or disclosure of PHI and any Security Incident. Business Associate also will report a Breach of Unsecured PHI, whether involving PHI in electronic or paper form, which Business Associate discovers, regardless of whether the Security Breach results from the acts or omissions of Business Associate or its agents or subcontractors. Business Associate will make such report orally to Covered Entity within five business days of Business Associate’s discovery of the Security Breach, followed by a report in writing (facsimile or e-mail is acceptable) within ten business days of the initial oral report. The written report shall include, at a minimum subject to the availability of necessary information, the following: (1) a description of the incident, (2) the date the incident occurred, (3) the date the incident was discovered, (4) if known, the identity and last known mailing address of affected Individuals, (5) if known, the affected categories of information for each affected Individual, (6) a description of the steps taken to mitigate the incident, (7) a description of the steps that have been, or will be, taken to mitigate the incident, and (8) a description of the steps that have been, or will be, taken to prevent a recurrence. Business Associate will update the written report periodically as material, new information becomes available.The Parties acknowledge and agree that this Section IV.C. constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of Covered Entity’s electronic PHI; provided however, that Business Associate shall document and maintain records of such Unsuccessful Security Incidents so that Business Associate will be able to provide a report in response to Covered Entity’s request.
      4. Mitigation Of Damages By Business Associate And Cooperation In Investigation. Business Associate agrees to take measures reasonably necessary to mitigate the known harmful effects of an unauthorized use of disclosure of PHI, Security Incident, or Security Breach.
      5. Internal Practices. Business Associate agrees to make its internal practices, books, and records, including, but not limited to, policies and procedures and information relating to the use and disclosure of Covered Entity’s PHI, available in response to the Secretary’s written request or a subpoena so that the Secretary may evaluate Covered Entity’s compliance with the HIPAA Regulations. Such access or production of information shall be made within the time frame established by the Secretary, or any agreed-to extension thereof. Business Associate shall notify Covered Entity of any such request by the Secretary within five business days of receiving the request.

• Covered Entity’s Obligations

1. 1. 1. Notice Of Privacy Practices. Covered Entity will, upon Business Associate’s request, provide Business Associate with the notice of privacy practices (“Notice”) applicable to Covered Entity under 45 C.F.R. pt. 164.520 and with any changes to the Notice that may affect Business Associate’s use or disclosure of PHI.
      2. Notice Of Changes In, Or Revocations Of, Authorizations. Covered Entity shall notify Business Associate of any changes in, or revocation of, an Individual’s authorization to use or disclose PHI to the extent the change may affect Business Associate’s use or disclosure of PHI.
      3. Notice Of Restrictions. Covered Entity shall notify Business Associate of any restriction upon the use or disclosure of PHI to which Covered Entity has agreed in accordance with 45 C.F.R. pt. 164.522 to the extent the restriction may relate to PHI used or disclosed by Business Associate.
      4. Minimum Necessary: Covered Entity shall provide to Business Associate only the minimum PHI necessary for Business Associate to provide services under the Axxess SLA

• Term and Termination

1. 1. 1. Term. This Addendum shall become effective on the effective date stated on page 1, above. This Addendum shall remain in effect until termination of the Axxess SLA, unless terminated sooner pursuant to paragraph VI.B, below.
      2. Termination. Notwithstanding anything in the Axxess SLA to the contrary, upon becoming aware of a material breach of this Addendum, the non-breaching Party will provide the breaching Party at least 30 days to cure the breach. If the breaching Party fails to do so within the time specified by the non-breaching Party, the Axxess SLA and this Addendum shall terminate on the deadline for curing the breach.
      3. Return Or Destruction Of PHI. Covered Entity may retrieve any PHI maintained by Business Associate at any time in accordance with the Axxess SLA. If and to the extent, Covered Entity cannot retrieve such PHI, within fifteen business days of the termination of this Addendum, Business Associate shall return to Covered Entity, or destroy, all PHI that is in Business Associate’s possession which PHI Business Associate created, received or maintained pursuant to the Axxess SLA (except for PHI retained in back-up media for disaster recovery and archival purposes or to evidence the underlying services) unless paragraph VI.D, below, applies. If Business Associate destroys PHI, it will do so in a manner which ensures that recovery of the PHI would be impracticable.
      4. Business Associate’s Retention Of PHI. If Business Associate notifies Covered Entity of the conditions which make return or destruction of Covered Entity’s PHI as required by paragraph VI.C, above, infeasible, Business Associate agrees that, with respect to the PHI for which compliance with paragraph VI.C has been excused, Business Associate will extend the protections of this Addendum to the retained PHI and limit further uses and disclosures of the retained PHI to those purposes which make return or destruction commercially impracticable, for as long as Business Associate maintains such PHI.
      5. Survival. Business Associate’s obligations and duties under this Addendum with respect to PHI received, created or maintained by Business Associate while performing under the Axxess SLA, or on Business Associate’s behalf, shall survive the termination of the Axxess SLA and of this Addendum and shall continue for as long as that PHI remains in the possession of Business Associate.

• Miscellaneous

1. 1. Construction. The Axxess SLA and this Addendum shall be interpreted to permit the Parties to comply with HIPAA and the HIPAA Regulations
   2. Entire Agreement; Relationship To Other Agreements. This Addendum contains the entire understanding of Covered Entity and Business Associate with respect to the subject matter of this Addendum. In the event of any inconsistency between the terms of this Addendum or any other agreement including the Axxess SLA, this Addendum supersedes all other agreements, whether written, oral or implied, regarding the subject matter of the Addendum.
   3. Indemnification. Business Associate shall defend and indemnify Covered Entity, its parent and subsidiary corporations, officers, directors, employees and agents from any and all claims, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by them as a result of any breach of this Addendum by Business Associate.Covered Entity shall defend and indemnify Business Associate and its representatives for any and all claims, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by Business Associate and its representatives as a result of any breach of this Addendum by Covered Entity.
   4. Modification. This Addendum may be modified only by a writing signed by the Parties If: (a) there is a change in the HIPAA Regulations, or in any law, regulation or rule, that affects this Addendum, or the activities of either Party under this Addendum, or the relationship of the Parties, or any change in the judicial or administrative interpretation of any such law, regulation, or rule, or any of the provisions of the Addendum are found to be in violation of any such law, regulation or rule, and (b) either Party reasonably believes in good faith that the change, interpretation, or determination will have a substantial adverse effect on that Party’s business operations, then the Party may, upon written notice, require the other Party to enter into good faith negotiations to renegotiate the terms of this Addendum, and to take any action necessary to maintain compliance with such laws, rules or regulations. If the Parties are unable to reach an agreement concerning the modification of this Addendum within the earlier of forty-five (45) calendar days after the date of the notice seeking renegotiation or the effective date of the change, then either Party may immediately terminate this Addendum effective upon notice to the other Party.
   5. Waiver. No provision of this Addendum, or any breach thereof, shall be deemed waived unless such waiver is in writing and signed by the Party claimed to have waived such provision or breach. No waiver of a breach shall waive or excuse any different or subsequent breach.
   6. Assignment. This Addendum may not be assigned without the consent of all Parties to this Addendum
   7. Severability. Any provision of this Addendum that is determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this Addendum or affecting the validity or enforceability of the Addendum’s remaining provisions.
   8. No Third-Party Beneficiaries. No third party shall be considered a third-party beneficiary under this Addendum, nor shall any third party have any rights as a result of this Addendum.
   9. Nature Of Agreement. Nothing in this Addendum shall be construed to create (1) a partnership, joint venture or other joint business relationship between the Parties or any of their affiliates, or (2) a relationship of employer and employee between the Parties. This Addendum does not express or imply any commitment to purchase or sell goods or services.

Covered Entity agrees (1) to the terms and conditions of the Axxess Service Level Agreement and (2) to demonstrate that agreement through an electronic signature. Covered Entity understands that an electronic signature is as legally binding as an ink signature.