PLEASE READ THE FOLLOWING ADVAULT PROVIDER NETWORK CATALYST MEMBER TERMS AND CONDITIONS CAREFULLY BEFORE CONFIRMING YOUR AGREEMENT, PROVIDING YOUR PAYMENT INFORMATION OR USING THE ADVAULT PROVIDER NETWORK CATALYST MEMBER WEB PORTAL. THIS AGREEMENT CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND ADVAULT.

ADVAULT PROVIDER NETWORK™ CATALYST MEMBER
TERMS AND CONDITIONS

PURPOSE

You want to become a Catalyst member of the ADVault Provider Network in order to unlock and access certain features of the ADVault Facilitated Advance Care Planning Service. ADVault is willing to grant You a limited license to access such features of the ADVault Facilitated Advance Care Planning Service on the terms and conditions set forth below.

  1. ACCEPTING THIS AGREEMENT; DEFINITIONS

1.1 Acceptance

In order to unlock and access the Catalyst features of the ADVault Facilitated ACP Service, You must first accept this Agreement. If You do not accept this Agreement, You are not permitted to use the Catalyst features. You accept and agree to this Agreement on Your own behalf and on behalf of Your company, organization, educational institution, or agency, instrumentality, or department of the of the government as its authorized legal representative by (i) checking the box displayed at the end of this Agreement; or (ii) clicking an “Agree” or similar button, where this option is provided by ADVault; or (iii) manually executing this Agreement on the last page, if You are signing a paper copy.

1.2 Definitions

Whenever capitalized in this Agreement:

Account Transaction” means the non-contemporaneous review of a unique individual MyDirectives account and/or PGHD by You or one of Your Authorized Users on behalf of any individual identified in Your patient panel as being aged 65 and over or otherwise qualifying for coverage by Medicare. For purposes of clarification, review of a Medicare-qualifying patient’s MyDirectives account and/or PGHD stored in that account by You or one of Your Authorized Users within any single 24-hour period commencing with the first Account Transaction will not be deemed to be separate Account Transactions for purposes of calculating fees due and payable by You under this Agreement.

ADVault” means ADVault, Inc., a Texas corporation with its principal place of business at 740 East Campbell Road, Suite 825, Richardson, Texas 75081, U.S.A.

ADVault APIs” means any application programming interfaces developed by or for ADVault that enable reading, writing, queries and/or retrieval of a Consumer Exchange Participant’s Data from the ADVault Exchange.

ADVault Exchange™” means ADVault’s proprietary registry and repository that provides for secure electronic health information exchange.

ADVault Facilitated Advance Care Planning™ Service” and “ADVault Facilitated ACP Service” mean ADVault’s proprietary, Internet-based service that allows ADVault Provider Network Catalyst members to (i) seamlessly and securely locate, retrieve and review Data stored by their patients on the ADVault Exchange; (ii) invite patients aged 18 and over who are not Consumer Exchange Participants to create a MyDirectives account and create or upload PGHD; (iii) securely access and review their patients’ PGHD; and (iv) record audit data supporting billing and reimbursement under applicable billing codes or contractual arrangements with healthcare payers.

ADVault Provider Network” means the network of healthcare providers who have access to the ADVault Facilitated Advance Care Planning Service web portal.

ADVault Solutions” means the ADVault Exchange, the ADVault Facilitated ACP Service, and MyDirectives.

ADVault Technology” means the technology provided by ADVault and used by Authorized Users of the ADVault Solutions. The ADVault Technology includes all HTML, Java, JSON, C#, SQL, graphics, data, user interfaces and Documentation associated with the operation of the technology.

Agreement” means these ADVault Provider Network Catalyst Member Terms and Conditions, including any attachments and any exhibits, which are hereby incorporated by this reference.

Applicable Laws” means local, state and United States federal laws, executive orders, rules, regulations, ordinances, codes, orders, and decrees of all governments or agencies of domestic or foreign jurisdictions applicable to You or ADVault.

Authorized User” means an individual authorized by ADVault and You to access the ADVault Facilitated ACP Service web portal for a Permitted Use and who has completed and signed an Authorized User Consent to Terms.

Business Day” means any calendar day except Saturday, Sunday or any day on which banking institutions in the State of Texas, U.S.A., generally are authorized or required by Applicable Law to close.

Consumer Exchange Participant” means an individual whose Data is provided to or accessed through the ADVault Exchange.

Data” means protected health information, as well as demographic information or other information that identifies a Consumer Exchange Participant and associates that individual with protected health information. For purposes of this definition, Data also includes without limitation (i) a Consumer Exchange Participant’s recorded expression(s) of medical treatment goals, preferences and priorities or similar non-clinical, person-generated health data (including advance care plans, advance directives, portable medical orders, and similar documents) (“PGHD”), regardless of the form, format or media used to record such PGHD; and (ii) information relating to the existence of a Consumer Exchange Participant’s PGHD stored on the ADVault Exchange. For the purposes of this Agreement, protected health information is defined by the United States Federal Health Insurance Portability and Accountability Act (“HIPAA”) Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 160 and Part 164, Subpart E, and the HIPAA Security Standards, 45 C.F.R. Part 160 and Part 164, Subpart C, or similar Applicable Laws, each as amended from time to time.

Documentation” means any technical or other specifications or documentation that ADVault may provide to You for use in connection with the ADVault Solutions.

Materials” means written and graphical content provided by or through the ADVault Solutions including, without limitation, text, photographs, illustrations, video and audio files, or other similar content, whether provided by ADVault, a member of the ADVault Provider Network, another customer of the ADVault Solutions, a Consumer Exchange Participant, or any other third party.

MyDirectives®” means ADVault’s consumer-facing platform for the creation/upload, storage, update and sharing of PGHD.

Permitted Use” means either (i) the performance of advance care planning services; or (ii) the incorporation of Data into a Consumer Exchange Participant’s medical record for purposes of coordinating care and informing the clinical decision-making process with respect to performing or withholding medical treatments and interventions.

Privacy Policy” refers to ADVault’s privacy policy published at https://mydirectives.com/en/about/privacy-policy/ which is incorporated into this Agreement by reference, as such policy may change from time to time.

Site” means a website provided by You under Your own name, trademark or brand.

Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of ADVault Technology or services, or to any part of the ADVault Technology or services.

You” and “Your” means the person(s) or legal entity (whether the company, organization, educational institution, or governmental agency, instrumentality or department) that has accepted this Agreement and that is accessing the Catalyst features of the ADVault Facilitated ACP Service or otherwise exercising rights under this Agreement.

  1. LICENSE AND RESTRICTIONS

2.1 Permitted Uses and Restrictions

Subject to the terms and conditions of this Agreement, ADVault hereby grants to You during the Term, a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to do the following:

(a) Access the ADVault Facilitated Advance Care Planning Service interface via the Internet from computers, tablets, smartphones and similar devices owned or controlled by You, to be used internally by You or Your Authorized Users solely for a Permitted Use, except as otherwise expressly permitted in this Agreement;

(b) Make and distribute a reasonable number of copies of the Documentation to Your Authorized Users for their internal use only and solely for a Permitted Use, except as otherwise expressly permitted in this Agreement;

(c) Establish links from Your Sites, digital documents, social media Sites, emails, texts and printed marketing or educational materials to the unique MyDirectives URLs referenced in Section 4;

(d) Subject to Section 2.5, reproduce and display ADVault trademarks on Your Sites, digital documents, social media Sites, emails, texts and printed marketing or educational materials; and

(e) Subject to Section 2.5, reproduce, display, distribute and publish any content on the publicly facing pages of MyDirectives on Your Sites, digital documents, social media Sites, emails, texts and printed marketing or educational materials.

You and Your Authorized Users agree to access the ADVault Facilitated ACP Service interface only through the web portal and only as authorized by ADVault. You agree not to create or attempt to create a substitute or similar service through use of or access to the services provided by or through the ADVault Facilitated ACP Service. Further, You and Your Authorized Users may only access such services using ADVault-issued credentials associated with Your account, and You are fully responsible for safeguarding Your authentication credentials from compromise and for using them only as authorized by ADVault in accordance with the terms of this Agreement. Except as otherwise expressly permitted in this Agreement, You agree not to share, sell, resell, rent, lease, lend or otherwise provide access to Your ADVault Facilitated ACP Service account or any services provided with that account, in whole or in part, to anyone who is not an Authorized User on Your team, and You agree not to solicit or request other ADVault Provider Network members to provide You with their authentication credentials and/or related account information. You understand that each team member must have his or her own authentication credentials to access Your account, and You will be fully responsible for all activity performed through or in connection with Your account.

2.2 Confidential Nature of Pre-Release ADVault Technology and Services

From time to time during the Term, ADVault may provide You with pre-release versions of ADVault Technology or services that constitute ADVault Confidential Information and that are subject to the confidentiality obligations of this Agreement. Such pre-release ADVault Technology and services should not be relied upon to perform in the same manner as a final-release, commercial-grade product, nor should they be used with data that is not sufficiently and regularly backed up, and they may include features, functionality or ADVault APIs for software or services that are not yet available. You acknowledge that ADVault may not have publicly announced the availability of such pre-release ADVault Technology or services, that ADVault has not promised or guaranteed to You that such pre-release ADVault Technology or services will be announced or made available to anyone in the future, and that ADVault has no express or implied obligation to You to announce or commercially introduce such ADVault Technology or services or any similar or compatible ADVault Technology. You expressly acknowledge and agree that any services that You perform using pre-release versions of the ADVault Technology or services is done entirely at Your own risk.

2.3 Copies

You agree to retain and reproduce in full the ADVault copyright, disclaimers and other proprietary notices (as they appear in the ADVault Technology and Documentation provided) in all copies of the ADVault Technology, Materials and Documentation that You are permitted to make under this Agreement.

2.4 Ownership

ADVault retains all rights, title and interest in and to the ADVault Solutions, ADVault Technology, Updates, Documentation, Materials and any services that ADVault may make available to You under this Agreement. You agree to cooperate with ADVault to maintain ADVault’s ownership of the ADVault Technology, Updates, Documentation, Materials and services, and, to the extent that You become aware of any claims relating to any of the foregoing, You agree to use commercially reasonable efforts to promptly notify ADVault. The parties acknowledge that this Agreement does not give ADVault any ownership interest in Your products or services.

2.5 No Other Permitted Uses

Except as otherwise set forth in this Agreement, You agree not to rent, lease, lend, upload to or host on any website or server, sell, redistribute or sublicense the ADVault Technology or any ADVault services, in whole or in part, or to enable others to do so. Neither You nor Your Authorized Users may use ADVault Technology or any ADVault services for any purpose not expressly permitted by this Agreement. You may not and You agree not to, or to enable others to, copy (except as expressly permitted under this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of the ADVault Technology or any services provided under this Agreement, or any part thereof. You agree not to exploit any ADVault Technology or ADVault services provided under this Agreement in any unauthorized way whatsoever, including but not limited to harvesting or misusing data provided by such ADVault Technology or ADVault services. Any attempt to do so is a violation of the rights of ADVault and its licensors of the ADVault Solutions, ADVault Technology and services. If You or any of Your Authorized Users breach any of the foregoing restrictions, You may be subject to prosecution and damages. All licenses not expressly granted in this Agreement are reserved, and no other licenses, immunity or rights, express or implied, are granted by ADVault, by implication, estoppel, or otherwise. Except as otherwise expressly set forth in this Agreement, this Agreement does not grant You any rights to use any trademarks, logos or service marks belonging to ADVault, including word marks. If You make reference to any ADVault Solutions or ADVault Technology or use ADVault’s trademarks, You agree to comply with the ADVault branding and style guidelines, as they may be modified by ADVault from time to time.

2.6 Use of Materials, the ADVault Exchange, MyDirectives and the ADVault Facilitated ACP Service

You agree to access and use Materials only as permitted by ADVault in writing, including in the Documentation. You may not use Materials in any manner that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party or ADVault, or that violates any Applicable Laws. You agree that the Materials contain ADVault proprietary content, information and material that is protected by applicable intellectual property and other laws. You may not use such proprietary content, information or materials in any way whatsoever, except for the permitted uses of the Materials under this Agreement, or as otherwise agreed by ADVault in writing.

You agree not to charge any fees to individuals for access to or use of MyDirectives through Your products or services or for access to any of their Data stored in the ADVault Exchange, and You agree not to sell access to MyDirectives in any way. You agree not to fraudulently create any MyDirectives accounts or induce any individual to violate the terms of their applicable MyDirectives terms and conditions of use with ADVault or to violate any ADVault usage policies for MyDirectives. You agree to abide by ADVault’s Privacy Policy published at https://mydirectives.com/en/about/privacy-policy/, as it may be modified by ADVault from time to time. Except as expressly set forth in this Agreement, You agree not to interfere with an individual’s ability to access or use MyDirectives or any other ADVault Solution.

ADVault reserves the right to change, suspend, deprecate, deny, limit or disable access to the ADVault Exchange at any time without notice including, but not limited to, revoking entitlements or changing any ADVault APIs in the ADVault Technology that enable access to the ADVault Exchange or not providing You with an entitlement. In no event will ADVault be liable for the reasonable removal or disabling of access to the ADVault Exchange. ADVault may also impose limits and restrictions on the use of or access to the ADVault Exchange without notice or liability in its sole discretion.

ADVault does not guarantee the availability or timeliness of any Data, or the accuracy, completeness or reliability of any PGHD, displayed in the ADVault Provider Network web portal. To the extent You choose to use the ADVault Solutions with Your products and services, You are responsible for Your reliance on any such Data or PGHD, as applicable. You understand and agree that You may not be able to access certain ADVault Solutions including, without limitation, the ADVault Exchange, upon expiration or termination of this Agreement, and that ADVault reserves the right to suspend access to or delete content, data or information that You have stored through Your use of such ADVault Solutions provided under this Agreement.

The ADVault Solutions may not be available in all languages or in all countries, and ADVault makes no representation that any such solutions would be appropriate, accurate or available for use in any particular location or product. To the extent You choose to use the ADVault Facilitated ACP Service, You do so at Your own initiative and are responsible for compliance with any Applicable Laws.

  1. YOUR OBLIGATIONS

3.1 General

You certify to ADVault and agree as follows:

(a) You are of the legal age of majority in the jurisdiction in which You reside (at least 18 years of age in many countries) and have the right and authority to enter into this Agreement on Your own behalf, or if You are entering into this Agreement on behalf of Your company, organization, educational institution, or agency, instrumentality, or department of the federal government, that You have the right and authority to legally bind such entity or organization to the terms and obligations of this Agreement;

(b) All information provided by You or Your Authorized Users to ADVault in connection with this Agreement or the use of the ADVault Facilitated ACP Service will be current, true, accurate, supportable and complete, and You will promptly notify ADVault of any changes to such information. You will keep and maintain an updated, complete and accurate record of identifying information for all of Your Authorized Users, and You agree to notify ADVault no later than (2) two days following any changes to Your list of Authorized Users so that ADVault can promptly issue or withdraw ADVault Facilitated ACP Service web portal access credentials as necessary and appropriate. Further, You agree that ADVault may share such information (including email address and mailing address) with third parties who have a need to know for purposes related to such information (e.g., intellectual property questions and customer service inquiries);

(c) You will comply with the terms of and fulfill Your obligations under this Agreement, including obtaining any required consents for Your Authorized Users’ use of the ADVault Facilitated ACP Service, and You agree to monitor and be fully responsible for all such use by Your Authorized Users and their compliance with the terms of this Agreement;

(d) You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by You and Your Authorized Users in connection with the ADVault Facilitated ACP Service including, but not limited to, any related development efforts, network and server equipment, Internet service(s), or any other hardware, software or services used by You in connection with Your use of any ADVault Technology; and

(e) You will not act in any manner that conflicts or interferes with any existing commitment or obligation You may have, and no agreement previously entered into by You will interfere with Your performance of Your obligations under this Agreement.

3.2 Use of the ADVault Facilitated Advance Care Planning Service

As a condition to using the ADVault Facilitated ACP Service, You further agree as follows:

(a) You will use the ADVault Facilitated ACP Service for the purposes and in the manner expressly permitted by this Agreement and in accordance with all Applicable Laws;

(b) You will not use the ADVault Facilitated ACP Service for any unlawful or illegal activity, nor to develop any product or service that would commit or facilitate the commission of a crime or other tortious, unlawful or illegal act;

(c) You will not, through the use of the ADVault Technology or otherwise, create any product or other code or program that would disable, hack or otherwise interfere with the security of any ADVault Technology, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by any ADVault Technology, or enable others to do so; and

(d) You will not, directly or indirectly, commit any act intended to interfere with the ADVault Solutions or the ADVault Technology, the intent of this Agreement, or ADVault’s business practices including, but not limited to, taking actions that may hinder the performance or intended use of any ADVault Solution. Further, You will not engage, or encourage others to engage, in any unlawful, unfair, misleading, fraudulent, improper or dishonest acts or business practices relating to Your own products or services.

  1. ADVAULT’S OBLIGATIONS

ADVault agrees as follows:

(a) ADVault will provide You with implementation and training Documentation and support sufficient for You and Your Authorized Users to (i) access the ADVault Facilitated ACP Service web portal and locate, retrieve and review Data stored by Your patients on the ADVault Exchange; (ii) invite patients aged 18 and older who are not Consumer Exchange Participants to create a MyDirectives account and create or upload PGHD; (iii) access and review Your patients’ Data; and (iv) record and review audit data supporting billing and reimbursement under applicable billing codes or contractual arrangements with Your healthcare payers. Without limiting the foregoing, and solely for purposes of illustration, ADVault may conduct conference calls, webinars, or on-site meetings for purposes of providing training to Your Authorized Users and representatives with respect to the ADVault Facilitated ACP Service web portal and MyDirectives features, potential customer service issues, and marketing and sales messages. You agree to promptly reimburse ADVault for reasonable travel expenses related to on-site training; provided, however, that all such travel expenses will be subject to Your prior written consent and authorization. ADVault will provide support, available from 8:00AM to 5:00PM Central Time, Monday through Friday, except for any day that is not considered a Business Day.

(b) ADVault will establish and assign to You a combination of unique URLs and enrollment codes, as appropriate, for the purpose of tracking Account Transactions. You agree to require Your Authorized Users to use only such unique URLs and enrollment codes when creating MyDirectives accounts for Your patients. ADVault will provide routine reporting of MyDirectives traffic and activity for Your patients on a de-identified, aggregated data basis using the unique URLs and enrollment codes provided to You.

(c) If You provide ADVault with a rich media file of Your logos, trademarks and other branding elements as part of the sign-up process, ADVault will create a custom MyDirectives landing page that incorporates those elements. You agree to grant to ADVault a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to any such elements for the purpose of creating a custom MyDirectives landing page for Your use during the Term.

  1. CHANGES TO TERMS AND CONDITIONS

ADVault may change this Agreement at any time. In order to continue accessing the ADVault Facilitated ACP Service, You must accept and agree to the new terms of this Agreement. If You do not agree to the new terms, Your access to the ADVault Facilitated ACP Service will be suspended or terminated by ADVault. You agree that Your acceptance of such new Agreement terms may be signified electronically, including without limitation, by Your checking a box or clicking on an “Agree” or similar button, where this option is provided by ADVault.

  1. ADVAULT FACILITATED ADVANCE CARE PLANNING SERVICE FEES

As consideration for the rights and licenses granted to You under this Agreement and Your participation as a Catalyst member of the ADVault Provider Network, You agree to pay to ADVault the following fees:

(a) A one-time setup, implementation and training fee in the amount of four hundred ninety-nine dollars ($499.00);

(b) A monthly account maintenance fee in the amount of one hundred ninety-nine dollars ($199.00); and

(c) A transaction fee in the amount of twenty-four dollars ($24.00) per Account Transaction. The transaction fee will be subject to annual review and increase on each anniversary of this Agreement during the Term; provided, however, that any such increase will not exceed 10% per year.

The one-time setup fee and the monthly account maintenance fee are payable in advance and will not be reduced pro rata. On the first Business Day of each calendar quarter, ADVault will determine Your actual number of Account Transactions for the prior calendar quarter and issue an invoice to You for the aggregate amount of transaction fees due for that quarter. All invoices for transaction fees are due and payable upon receipt. 

All fees are non-refundable, and any taxes that may be levied on Your participation as an ADVault Provider Network Catalyst member will be Your responsibility. Your fees must be paid up and, with the exception of the quarterly transaction fee, not in arrears to ensure Your continued access to and use of the ADVault Facilitated ACP Service Catalyst features. Further, You agree to pay a late charge of 1.5% per month or the maximum lawful interest rate, whichever is less, for all amounts not paid at their due date. Contemporaneously with Your acceptance of this Agreement, ADVault will provide You with a form that You will be able to use to provide credit card information for ADVault to keep on file and charge for the payment of Your fees. You agree that ADVault may charge such credit card for such fees, subject to the terms of this Agreement. ADVault agrees to keep and hold Your payment information confidential.

  1. CONFIDENTIALITY

7.1 Information Deemed ADVault Confidential

You agree that all pre-release versions of ADVault Technology or services (including pre-release Documentation and Materials) and any terms in this Agreement that disclose pre-release features will be deemed “ADVault Confidential Information”; provided, however, that upon the commercial release of any such ADVault Technology or services the terms and conditions that disclose pre-release features of the ADVault Technology or services will no longer be confidential. Notwithstanding the foregoing, ADVault Confidential Information will not include (i) information that is generally and legitimately available to the public through no fault or breach of Yours; (ii) information that is generally made available to the public by ADVault; (iii) information that is independently developed by You without the use of any ADVault Confidential Information; or (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to You without limitation.

7.2 Obligations Regarding ADVault Confidential Information

You agree to protect ADVault Confidential Information using at least the same degree of care that You use to protect Your own confidential information of similar importance, but no less than a reasonable degree of care. You agree to use ADVault Confidential Information solely for the purpose of exercising Your rights and performing Your obligations under this Agreement and agree not to use ADVault Confidential Information for any other purpose, or for Your own or any third party’s benefit, without ADVault’s express prior written consent. You further agree not to disclose or disseminate ADVault Confidential Information (i) to anyone other than Your employees and contractors, or Your faculty and staff if You are an educational institution, who have a need to know and who are bound by a written agreement that prohibits unauthorized use or disclosure of the ADVault Confidential Information; or (ii) except as otherwise agreed or permitted in writing by ADVault. You may disclose ADVault Confidential Information to the extent required by Applicable Laws, provided that You take reasonable steps to notify ADVault of such requirement before disclosing the ADVault Confidential Information and to obtain protective treatment of the ADVault Confidential Information. You acknowledge that damages for improper disclosure of ADVault Confidential Information may be irreparable; therefore, ADVault is entitled to seek equitable relief, including injunction and preliminary injunction without the requirement of posting a bond or proving a likelihood of success on the merits of a lawsuit, in addition to all other remedies.

7.3 Information Submitted to ADVault Not Deemed Confidential

ADVault works with many healthcare providers whose services may be similar to or compete with Your services. ADVault may also be developing its own similar or competing healthcare services or may decide to do so in the future. To avoid potential misunderstandings and except as otherwise expressly set forth in this Agreement, ADVault cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that You may provide in connection with this Agreement or the ADVault Facilitated ACP Service (such disclosures will be referred to as “Licensee Disclosures”). You agree that any such Licensee Disclosures will be non-confidential. Except as otherwise expressly set forth in this Agreement, ADVault will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating You. You release ADVault from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Licensee Disclosures. Any physical materials You submit to ADVault will become ADVault property, and ADVault will have no obligation to return those materials to You or to certify their destruction.

7.4 Press Releases and Other Publicity

You may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without ADVault’s express prior written approval, which may be withheld at ADVault’s discretion. ADVault will have the right to use Your trade name and/or logo in promotional materials and on ADVault’s websites, but only to identify You as a customer of ADVault.

  1. INDEMNIFICATION

To the extent permitted by Applicable Laws, You agree to indemnify and hold harmless, and upon ADVault’s request, defend, ADVault, its directors, officers, employees, independent contractors and agents (each an “ADVault Indemnified Party”) from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys’ fees and court costs (collectively, “Losses”), incurred by an ADVault Indemnified Party and arising from or related to (i) Your breach of any certification, covenant, obligation, representation or warranty in this Agreement; (ii) ADVault’s permitted use, promotion or delivery of Your trademarks and logos, or images and other materials that You provide to ADVault under this Agreement; (iii) any claims, including but not limited to any patient claims, regarding Your performance of services; or (iv) Your unauthorized or improper use (including Your Authorized Users’ unauthorized or improper use) of any ADVault Technology or services. In no event may You enter into any settlement or like agreement with a third party that affects ADVault’s rights or binds ADVault in any way, without the express prior written consent of ADVault.

  1. TERM AND TERMINATION

9.1 Term

The term of this Agreement (the “Term”) will extend until the one (1) year anniversary of the original activation of Your ADVault Provider Network Catalyst membership. Thereafter, subject to Your payment of Your monthly account maintenance fees and quarterly transaction fees, and subject to compliance with the terms of this Agreement, the Term will automatically renew for successive one (1) year terms, unless sooner terminated in accordance with this Agreement.

9.2 Termination

This Agreement and all rights and licenses granted by ADVault under this Agreement and any services provided under this Agreement will terminate, effective immediately, upon notice from ADVault:

(a) If You or any of Your Authorized Users fail to comply with any term of this Agreement other than those set forth below in this Section 9.2 and fail to cure such breach within 30 days after becoming aware of or receiving notice of such breach;

(b) If You or any of Your Authorized Users fail to comply with the terms of Section 7;

(c) If You, at any time during the Term, commence an action for patent infringement against ADVault;

(d) If You become insolvent, fail to pay Your debts when due, dissolve or cease to do business, file for bankruptcy, or have filed against You a petition in bankruptcy; or

(e) If You engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful or dishonest act relating to this Agreement including, but not limited to, misrepresenting the nature of Your services or Your use of the ADVault Facilitated ACP Service.

ADVault may also terminate this Agreement or suspend Your rights to use the ADVault Facilitated ACP Service if You fail to accept any new program requirements or Agreement terms as described in Section 5. Either party may terminate this Agreement for its convenience, for any reason or no reason, effective 90 days after providing the other party with written notice of its intent to terminate.

9.3 Effect of Termination

Upon the termination of this Agreement for any reason, You agree to immediately cease all use of the ADVault Facilitated ACP Service and erase and destroy all copies, full or partial, of any information pertaining to ADVault Technology or ADVault’s services and all copies of ADVault Confidential Information in Your and Your Authorized Users’ possession or control. At ADVault’s request, You agree to provide written certification of such destruction to ADVault. Sections 1, 2.2, 2.4, 2.5, 3.1(d), 3.1(e), 3.2(b), 3.2(c), 3.2(d), the second and third paragraphs of Section 6, and Sections 9 through 14 will survive any termination of this Agreement. ADVault will not be liable for compensation, indemnity or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy ADVault may have, now or in the future.

  1. NO WARRANTY

ADVault and its licensors reserve the right to change, suspend, remove, or disable access to any ADVault Technology (or any part thereof) at any time without notice. In no event will ADVault or its licensors be liable for the removal of or disabling of access to any ADVault Technology, including the ADVault Facilitated ACP Service. ADVault or its licensors may also impose limits on the use of or access to certain services, remove the services for indefinite time periods, or cancel the services at any time and in any case and without notice or liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE ADVAULT TECHNOLOGY AND ANY SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE ADVAULT TECHNOLOGY AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ADVAULT, ADVAULT’S AGENTS AND ADVAULT’S LICENSORS (COLLECTIVELY REFERRED TO AS “ADVAULT” FOR THE PURPOSES OF SECTIONS 12 AND 13) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE ADVAULT TECHNOLOGY AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ADVAULT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE ADVAULT TECHNOLOGY OR SERVICES, THAT THE ADVAULT TECHNOLOGY OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE ADVAULT TECHNOLOGY OR THE PROVISION OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS OR ERRORS IN THE ADVAULT TECHNOLOGY OR SERVICES WILL BE CORRECTED, OR THAT THE ADVAULT TECHNOLOGY OR SERVICES WILL BE COMPATIBLE WITH FUTURE ADVAULT SOLUTIONS, SERVICES OR TECHNOLOGY OR ANY THIRD-PARTY SOFTWARE, APPLICATIONS, OR SERVICES, OR THAT ANY INFORMATION STORED OR TRANSMITTED THROUGH ANY ADVAULT TECHNOLOGY WILL NOT BE LOST, CORRUPTED OR DAMAGED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ADVAULT OR AN ADVAULT AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

  1. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL ADVAULT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OR INABILITY TO USE THE ADVAULT TECHNOLOGY OR SERVICES, OR YOUR PARTICIPATION IN THE ADVAULT PROVIDER NETWORK, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF ADVAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. In no event will ADVault’s total liability to You under this Agreement for all damages (other than as may be required by Applicable Law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).

  1. GENERAL LEGAL TERMS

12.1 Third-Party Notices

Portions of the ADVault Technology or services may utilize or include third-party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the Documentation, and Your use of such material is governed by their respective terms.

12.2 Assignment; Relationship of the Parties

This Agreement may not be assigned, nor may any of Your obligations under this Agreement be delegated, in whole or in part, by You by operation of law, merger, or any other means without ADVault’s express prior written consent, and any attempted assignment without such consent will be null and void. To submit a request for ADVault’s consent to assignment, please email: facp@advaultinc.com. This Agreement will not be construed as creating any agency relationship, or a partnership, joint venture, fiduciary duty, or any other form of legal association between You and ADVault, and You will not represent to the contrary, whether expressly, by implication, appearance or otherwise. This Agreement is not for the benefit of any third parties.

12.3 Independent Development

Nothing in this Agreement will impair ADVault’s right to develop, acquire, license, market, promote, or distribute products or services that perform the same or similar functions as, or otherwise compete with, any services that You may offer to Your patients.

12.4 Notices

Any notices relating to this Agreement will be in writing. Notices will be deemed given by ADVault when sent to You at the email address or mailing address You provide during the sign-up process. All notices to ADVault relating to this Agreement will be deemed given (i) when delivered personally; (ii) three (3) Business Days after having been sent by commercial overnight carrier with written proof of delivery; and (iii) five (5) Business Days after having been sent by first class or certified mail, postage prepaid, to ADVault, Inc., 740 East Campbell Road, Suite 825, Richardson, Texas 75081 U.S.A. You consent to receive notices by email and agree that any such notices that ADVault sends You electronically will satisfy any legal communication requirements. A party may change its email or mailing address by giving the other party written notice as described above.

12.5 Severability

If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable for any reason, that provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

12.6 Waiver and Construction

Failure by ADVault to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any Applicable Laws that provide that the language of a contract will be construed against the drafter will not apply to this Agreement. Section headings are for convenience only and are not to be considered in construing or interpreting this Agreement.

12.7 Export Control

You may not use, export, re-export, import, sell or transfer any ADVault Technology except as authorized by United States law, the laws of the jurisdiction in which You obtained such ADVault Technology, and any other Applicable Laws. In particular, but without limitation, ADVault Technology may not be exported or re-exported (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List or any other restricted party lists. By using ADVault Technology, You represent and warrant that You are not located in any such country or on any such list.

12.8 Governing Law; Jurisdiction

This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, U.S.A., and the intellectual property laws of the United States of America, as applicable, without reference to principles of conflicts of law or other principles that would require the application of the laws of any other jurisdiction. By accepting this Agreement, You consent to the personal and exclusive jurisdiction of the United States federal and state courts located in Dallas County, Texas, U.S.A.

12.9 Entire Agreement; Governing Language

This Agreement constitutes the entire agreement between the parties with respect to the use of the ADVault Technology licensed under this Agreement and, except as otherwise set forth in this Agreement, supersedes all prior understandings and agreements regarding its subject matter. Notwithstanding the foregoing, to the extent that You are provided with pre-release ADVault Technology as a Catalyst member of the ADVault Provider Network and such pre-release ADVault Technology is subject to a separate license agreement, You agree that the license agreement accompanying such materials in addition to Section 7 of this Agreement will also govern Your use of such ADVault Technology. This Agreement may be modified only (i) by a written amendment signed by both parties; or (ii) to the extent expressly permitted by this Agreement (for example, by ADVault by written or email notice to You). Any translation is provided as a courtesy to You, and in the event of a dispute between the English and any non-English version, the English version of this Agreement will govern, to the extent not prohibited by local law in Your jurisdiction.

Last Updated on 1-9-2020