Terms and Conditions of Use

These Terms and Conditions of Use (“TOU”) govern the use of the platform made available by Careswitch, Inc. (“Careswitch”) and the content and services for managing homecare, which are provided by Careswitch through such online platform (collectively, with the platform, and any other professional service or implementation services set forth an Order, the “Service”). To sign-up for or purchase a subscription to any Service hereunder, Customer must execute an ordering document with Careswitch that references these TOU or register for a subscription (any such online registration request or order that is accepted by Careswitch is hereafter referred to as an “Order”). The Order will identify the applicable entity that is designated as the customer (“Customer”). Each Order will also identify the features and functionality of the Service to be provided to the Customer pursuant to such Order and may also identify limitations or other applicable restrictions on use. Careswitch will not be required, by virtue of this Agreement or otherwise, to provide to Customer any other Service features or functionality which are not expressly covered by such Order. These TOU, together with the Order(s) (including any supplemental terms incorporated therein by reference, such as the Business Associate Addendum, collectively constitute the “Agreement.”

BY CLICKING “I ACCEPT” OR EXECUTING AN ORDER, THE INDIVIDUAL ACCEPTING THE TOU OR EXECUTING THE ORDER REPRESENTS AND WARRANT THAT THEY HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER. BY CHECKING “I ACCEPT” OR EXECUTING AN ORDER, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY OF ALL OF THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE BUSINESS ASSOCIATE ADDENDUM.

These TOU are subject to occasional revision, and Careswitch reserves the right to modify fees for accessing or using the Service in the future. See Section 10.5 of this Agreement for further information about changes to this Agreement.

1. SERVICE

1.1 Overview. Subject to any applicable usage limitations set forth in an Order, the Service enables Customer’s authorized employees or independent contractors who have valid credentials on the Service (“Admin Users”) to: (i) access certain administrative features of the Services, such as scheduling and invoicing, and (ii) grant Caregivers access to Customer’s workspace(s) on the Service (each, a “Workspace”). Admin Users may share Workspaces with other users who have (i) created a caregiver account in their personal capacity via the Service and (ii) accepted and agreed to be bound by Careswitch’s terms of use applicable thereto (collectively, “Caregivers”). Customer is solely responsible for (i) determining which employees or independent contractors should be designated as Admin Users, (ii) determining which Caregivers should be granted access to Customer’s Workspaces, (iii) ensuring that its Admin Users and other individuals that they authorize to access the Workspace comply with all applicable Customer policies when using the Service and have appropriate authorization to access any information contained in the Customer Workspaces, and (iv) for entering into all necessary and appropriate agreements directly with Caregivers (such as an employment, contractor, or business associate agreement), including as may be required to grant Caregivers access to information in such Workspaces.

1.2 Access and Use of Service. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Careswitch grants Customer a non-exclusive, non-transferable right, during the Subscription Term to access and use the Service in accordance with any applicable usage limitations as set forth on an Order solely for Customer’s internal business purpose and solely in accordance with the published documentation for the Service which is made available at https://help.careswitch.com/ (“Documentation”).

1.3 Accounts. As part of the set-up process, Customer may: (i) be asked to create one or more accounts on the Service for itself and its designated Admin Users (each, an “Account”) and (ii) provide certain information as prompted in the account registration process. Customer represents and warrants that: (a) all required Account registration information submitted is truthful and accurate; and (b) Customer will maintain the accuracy of such information. Customer is responsible for maintaining the confidentiality of all Account login information and is fully responsible for all activities that occur under its Accounts, including, but not limited to, the activities of its Admin Users. Customer will use reasonable efforts to prevent any unauthorized access or use of the Service and Accounts, including disabling Caregiver access to Workspace(s) when a Caregiver’s relationship with Customer ends, and Customer agrees to immediately notify Careswitch of any unauthorized use, or suspected unauthorized use, of the Accounts or any other breach of security. Additionally, if there is unauthorized access or use by anyone who obtained access directly or indirectly through Customer or its Admin Users, Customer will also take all steps reasonably necessary to terminate the unauthorized access or use and cooperate and assist with any actions taken by Careswitch to remediate any issues resulting from, or related to, such unauthorized access or use. Careswitch will not be liable for any loss or damage arising from any unauthorized use of the Accounts or Customer’s failure to comply with the above requirements.

1.4 Restrictions. To the maximum extent permitted by applicable law, Customer shall not, directly or indirectly, and shall not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, structure, ideas, algorithms, or other hidden or non-public elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iv) use in any manner for the purpose of developing, distributing or making accessible products or services that compete with; (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any rights in, (vi) make the available on a service bureau basis or software as a service basis, or otherwise access or use for the benefit of a third party; (vii) allow unauthorized persons to have access to; (viii) transmit, upload or disseminate any unlawful, infringing or harmful data, content or code, including any virus, adware, spyware, worm or other malicious code, to or from; (ix) interfere with, disrupt, or create an undue burden on (or violate the regulations, policies or procedures of) any servers or networks connected to; (xi) attempt to gain unauthorized access to, or interfere with or circumvent any security or access control mechanism of; (xii) alter or remove any trademarks or proprietary notices contained in or on; (xiii) use to store or transmit material in violation of third party privacy rights or applicable privacy laws; (xiv) use for any unlawful purpose, in violation of any applicable law or in a manner that could otherwise give rise to civil liability; (xv) perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, or accessing any account without permission; (xvi) engage in framing, mirroring, or otherwise simulating the appearance or function of; (xvii) perform or publish any performance or benchmark tests or analyses relating to; or (xviii) otherwise use except as expressly permitted hereunder, in each case of (i) – (xviii), in whole or in part, the Service, Documentation, or any other technology constituting or used to provide the foregoing (collectively, “Careswitch Technology”).

1.6 Professional Services and Implementation Services. If so indicated on an Order, subject to Customer’s timely payment of all applicable fees therefore, Careswitch will use commercially reasonable efforts to provide to Customer the professional services and/or implementation services identified in the applicable Order. Except as set forth on an Order, Customer is solely responsible for integrating the Service with Customer’s and any other applicable third party systems, data or software. Careswitch will own all right, title and interest, including all intellectual property rights, in and to any work product developed by Careswitch in the course of such professional services or implementation services. Nothing in this Agreement shall be understood to prevent Careswitch from developing similar work product for other customers. Customer shall provide Careswitch with materials, personnel and access (including, if applicable, remote access) to Customer’s systems and premises as reasonably requested by Careswitch to provide such professional services and implementation services.

2. USER INTERACTIONS

2.1 Interactions with Other Users; Limitations of our Services. Customer acknowledge and agree that it is solely responsible for its and its Admin Users’ interactions with other users of the Service, including Caregivers; provided, however, that Careswitch reserves the right, but has no obligation, to intercede in such disputes. Customer understands and agrees that Caregivers are not Careswitch’s employees or service providers, and that Careswitch will have no liability for the actions or inactions of any Caregiver or other user of the Service, whether online or offline. Careswitch is not a party to any transaction between Customer and Caregivers. Without limiting the foregoing, Customer acknowledges and agrees that: (i) Careswitch has no obligation to, and does not, conduct background checks on Caregivers, and Customer is solely responsible for interviewing, vetting, performing background and reference checks on, verifying information provided by, and selecting an appropriate Caregivers, (ii) Customer is responsible for compliance with all applicable employment and other laws in connection with any employment relationship Customer establishes with Caregivers (such as applicable payroll, tax, and minimum wage laws), (iii) Careswitch does not refer or recommend Caregivers nor does Careswitch make any representations about the suitability, reliability, timeliness, or accuracy of the services provided by Caregivers or the integrity, responsibility, or actions of Caregivers whether in public, private or offline interactions, (iv) Careswitch is not an employment agency, and Careswitch does not secure or procure employees for Customer, nor does Careswitch secure or procure opportunities for employment for any Caregivers, and (v) Careswitch does not provide any medical, diagnostic, treatment or any other clinical service, or engage in any conduct that requires a professional health care provider license.

2.2 Content Provided by Other Users. Customer acknowledges that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through the Service (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that Customer, and not Careswitch, is entirely responsible for all Content that Customer or its Admin Users upload, post, email, transmit or otherwise make available through the Service (collectively, “Customer Content”), and that Caregivers, and not Careswitch, are similarly responsible for all Content that they upload, post, email, transmit, or otherwise make available through the Service (“Caregiver Content”). Careswitch is not responsible for, does not control, has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to any Customer Content or Caregiver Content. Customer accesses and uses all Customer Content and Caregiver Content and interacts with other users, including Caregivers, at its own risk. If Customer grants other users access or rights to Customer Content, Customer represents and warrants that it has the right to grant such access or rights.

3. THIRD-PARTY INVOICING AND PAYMENTS

The Service enables Customer to invoice third parties for certain Customer services. The Service also offers, through a third party, currently Stripe Inc. (“Payment Processor”), a service that facilitates the payment to Customer for certain of Customer’s services. Careswitch does not handle any payments made through or in connection with the Service or transmit any payments between Customer and third parties. Customer must separately enter into an agreement with the Payment Processor through which Customer will directly agree to the Stripe Connected Account Agreement (currently available at https://stripe.com/legal/connect-account) as well as related applicable terms and conditions with the Payment Processor. Careswitch is not a party to any agreement with Payment Processor and is not liable to Customer with respect to any aspect of the services provided by Payment Processor. Payment Processor facilitates Customer’s acceptance of credit and debit cards, and other eligible methods of payment, from third parties for purchases made through the Service. Customer will need to establish a separate account directly with the Payment Processor and, provided that it does so, Customer will be able to accept payments from third parties and receive settlement of payment processing proceeds directly from Payment Processor and in accordance with Customer’s applicable agreements with Payment Processor. Customer agrees and understands that responsibility for fraud, refunds, chargebacks, errors, and all other aspects of payments acceptance and related activities is solely as between Customer and Payment Processor. Careswitch’s Payment Processor may have an obligation to provide certain notices or forms to such accounts. As a condition of this Agreement, Customer authorizes Careswitch to receive these notices and forms on Customer’s behalf, without Careswitch’s Payment Processor being obliged to directly provide the notices and forms to Customer or such account. Customer acknowledges and agrees that its use of the Payment Processor’s services is in accordance with applicable agreements, policies, and any applicable service fees, charges, and taxes between the Payment Processor and Customer. Careswitch reserves the right to change the Payment Processor available through the Service from time to time in its sole discretion. Careswitch shall not, under any circumstances, be responsible for: (i) the collection or processing of any payments on Customer’s behalf; or (ii) any errors, mistakes, transmission problems, issues of non-payment between Customer and third parties or any other payment processing issues.

4. THIRD-PARTY SERVICES AND AI TOOLS

4.1 Third-Party Services and AI Tools.The Service may utilize third-party artificial intelligence tools in connection with Customer’s use of the Service (“AI Tools”) and may contain links to other independent third-party websites and applications (such third-party websites and applications together with the AI Tools, “Third-Party Services”). Third-Party Services are not under Careswitch’s control, and Careswitch makes no representations and warranties with respect to, is not responsible for, and does not endorse their content or their terms (if any). Customer and its Admin Users will need to make their own independent judgment regarding any interaction with Third-Party Services, including the purchase and use of any products or services accessible through them.

4.2 AI Tools.Except where expressly specified otherwise, the AI Tools constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Customer’s use of the AI Tools. The AI Tools leverage third-party large language models and artificial intelligence algorithms and platforms to generate suggestions, guidance, and other outputs related to the Service (collectively, the “Output”) in response to the Customer’s prompts (“Prompts”). Careswitch is not responsible for any Output generated, and Customer uses such Output at its own risk. As between the parties, each of the Prompts and Output are considered “Customer Content,” for the purposes of the Agreement, provided that: (i) such Prompts may be provided to Third-Party Services in order for Customer to access the AI Tools, and such Third-Party Services may not be required to maintain the confidentiality of any Prompts or Output; and (ii) such Third-Party Services may retain certain rights to use or disclose the Prompts and Output, including to further train their algorithmic models, in the terms and conditions or policies governing the Third-Party Services (“Third-Party Terms”).

4.3 Customer Responsibility with AI Tools.Customer shall comply with all obligations and commitments in the Agreement with respect to Customer Content in connection with Customer’s use of the AI Tools. Customer is solely responsible for the Prompts, its Outputs and its use thereof. Without limiting the disclaimers in Section 9 below, Customer is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Customer’s representations and warranties under the Agreement, Customer shall not use any Prompts or Output that: (i) infringes or misappropriates any third party’s intellectual property rights or other proprietary rights; (ii) is deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic, or illegal; (iii) contains any viruses, worms, or other malicious computer programming codes that may damage the Service; (iv) contains any personal information, such as financial, medical, or other sensitive personal information such as government IDs, passport numbers or social security numbers; or (v) violates the Third-Party Terms. Careswitch reserves the right to suspend or terminate Customer’s access to the AI Tools for any failure by Customer or an Admin to comply with this Section. In addition to the foregoing, Customer’s obligations under the Agreement with respect to use of the Service, its representations, and warranties and indemnification obligations, shall apply in full with respect to Customer’s use of the AI Tools. Customer acknowledges and agrees that, notwithstanding the automated suggestions provided by the AI Tool, it remains solely responsible for any decision with respect to caregiving, scheduling, and other services that may be required for Customer’s Customers and any Caregivers.

5. SUBSCRIPTION FEES; PAYMENT OF SUBSCRIPTION FEES

5.1 Subscription and Auto-Renewal.Customer agrees to pay to Careswitch any fees for the Service in accordance with the payment terms in the Order. Subscriptions automatically renew (as further described in Section 6.2 below). Customer will be billed for all amounts due under this Agreement via its connected account with the Payment Processor or other Customer-provided payment method on file. Customer must provide current, complete, and accurate information for Customer’s billing account and promptly update all information to keep Customer’s billing account current, complete, and accurate. Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by law. By choosing an automatically renewing subscription plan, Customer acknowledges that such Service has a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination. If there are no valid payment methods on file for Customer, Careswitch may send Customer invoices for the balance of any amounts due. Careswitch reserves the right to modify fees at the end of a Subscription Term, as defined below, with 30 days’ written notice to Customer.

5.2 Taxes.Prices do not include, and Customer must pay or reimburse Careswitch for, all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Careswitch’s net income). If Careswitch has a legal obligation to pay or collect sales tax for which Customer is responsible, Careswitch will calculate the sales tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer’s billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides Careswitch with a valid tax exemption certificate acceptable to the appropriate taxing authority.

5.3 Overdue Amounts.Unless otherwise set forth in an Order, Careswitch may charge Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue.

6. TERM AND TERMINATION

6.1 Term.This Agreement will start on the effective date of the first Order and, unless terminated earlier in accordance with this Agreement, will continue until all of Customer’s subscriptions have expired or been terminated.

6.2 Subscription Term and Renewals.The duration of Customer’s initial subscription term for the Service will be as set forth in the Order (“Initial Subscription Term”) and, unless otherwise stated, will automatically renew for consecutive subscription terms as indicated on the Order (each, a “Renewal Subscription Term”) until terminated or cancelled by Customer or Careswitch as set forth below. The Initial Subscription Term, together with any applicable Renewal Subscription Term(s), are collectively, the “Subscription Term.”

6.3 Termination of Recurring Subscriptions.Unless otherwise set forth on an Order, either party may cancel any automatically renewing subscription(s) under this Agreement by providing the other party with at least thirty (30) days’ notice of its intent to terminate prior to the end of the then-current Subscription Term. Customer should send notices of termination via the help center messenger. If Customer cancels or Careswitch terminates a subscription as set forth above, then Customer will continue to have access to the Service until completion of Customer’s then-current Subscription Term, provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement.

6.4 Termination for Cause. Careswitch may terminate this Agreement and/or any applicable subscription, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment of any amounts owed to Careswitch. Additionally, ether party may terminate this Agreement and all Orders in the event that: (i) the other party is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (ii) the other party files for or is adjudicated bankrupt or suffers any other analogous event.

6.5 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding subscriptions and access to the Service will automatically terminate; and (ii) all outstanding payment obligations of Customer become due and payable immediately. This Section 6.5, all definitions, and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.3, 1.4,1.5, 2, 3, 4, 5, 7.3, 7.5 through 10.

6.6 Delinquent Accounts; Suspension. Careswitch reserves the right to suspend or terminate the Service or access to any other Careswitch Technology in its sole discretion if any amount hereunder is due but unpaid until such time as all amounts due under this Agreement are paid in full. In addition to the amount due, Customer will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees. Additionally, Careswitch reserves the right to suspend Customer’s and/or its Admin Users’ access to the Service, Careswitch Technology, or any portion thereof at any time: (i) in the event that Careswitch suspects in good faith that Customer or any of its Admin Users is using the Service or any Careswitch Technology in violation of this Agreement, or (ii) if Careswitch otherwise believes such action is reasonable to comply with any applicable law, regulation, or court order.

7. LICENSE; OWNERSHIP

7.1 License from Customer.As between the parties, Customer retains all of its right, title, and interest in and to any Customer Content, provided that Careswitch is hereby granted a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, irrevocable, right and license to (i) use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display Customer Content (in whole or in part) for the purposes of operating and providing the Service to Customer, Customer’s Admin Users, and, subject to any applicable Account or Workspace settings select by Admin Users, to Careswitch’s other users of the Service; and (ii) collect, access, process, and analyze log and other data related to the Service and other Careswitch Technology and use such data to train Careswitch’s algorithms, to troubleshoot, improve and enhance the Service and Careswitch Technology, and for other development, diagnostic, security, and corrective purposes. To the extent Customer makes its Customer Content available to third parties via privacy settings, tools, or other functionalities of the Service, Customer hereby grants to such third parties a worldwide, non-exclusive, royalty-free, fully paid-up right and license to access and use the Customer Content in connection with their use of the Service. Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense and Customer acknowledges that Careswitch has the right to delete all Customer Content upon termination of this Agreement.

7.2 Monitoring Customer Content.The Customer Content is the sole responsibility of Customer, including its accuracy, completeness, and suitability. Customer is responsible for obtaining all consents required from third parties to allow Careswitch to access, use, and process the Customer Content as set forth herein and to exercise the license rights to Customer Content as set forth in Section 7.1. Although Careswitch has no obligation to monitor Customer’s use of the Service or other Careswitch Technology, Careswitch reserves the right in its sole discretion to (i) pre-screen, refuse or remove any Customer Content from the Service, including if Careswitch believes it violates this Agreement, applicable laws and regulations, or is otherwise objectionable; and (ii) terminate Accounts as set forth in Careswitch’s Intellectual Property Policy.

7.3 Compliance with Laws; Criminal Activity.Customer will use the Service in compliance with all applicable laws and regulations, including, but not limited to, all laws that relate to the confidentiality, integrity, availability, and/or protection of personal information, electronic data privacy, trans-border data flow, or data protection. Customer will obtain all necessary consents, permissions, approvals, or licenses to use and permit Careswitch and any Caregivers that are granted access to Customer’s Workspace to use the Customer Content in accordance with this Agreement and all applicable laws. Customer agrees to hold harmless Client from any alleged violation of the foregoing. Without limiting Careswitch’s rights and remedies, if Careswitch believes that criminal activity has occurred, Careswitch reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including Customer Content, in Careswitch’s possession in connection with Customer’s use of the Service, to (i) comply with applicable laws, legal processes or governmental requests, (ii) enforce the Agreement, (iii) respond to any claims that Customer Content violates the rights of third parties, (iv) respond to Customer’s requests for customer service, or (v) protect the rights, property, or personal safety of Careswitch, its users, or the public, and all enforcement or other government officials, as Careswitch in its sole discretion believes to be necessary or appropriate.

7.4 Additional Onboarding Information.Careswitch reserves the right, but has no obligation, to request additional information from Customer to verify Customer’s identity in order to comply with laws and regulations, including those governing payments, safeguard the integrity of the Service, and reduce the risk of fraud, money laundering, terrorist financing, and the violation of trade sanctions. Information that Careswitch may request, or seek to confirm, may include your full legal name, mailing address, phone number, date of birth, taxpayer identification number, bank account information, and a form of government-issued identification.

7.5 Customer Content Restrictions.Customer agrees not to provide, and represents and warrants that the Customer Content will not contain: (i) any content or material that is illegal or violates, infringes or misappropriates any third party’s intellectual property rights, or constitutes an invasion of privacy or misappropriation of publicity rights; (ii) any content or material that is indecent or obscene; (iii) any computer code, programs, or programming devices that are designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, the operation of the Service or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” “drop dead,” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Service to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operation; or (iv) any content or material that is otherwise objectionable to Careswitch in its sole discretion.

7.6 Ownership.Except for the limited rights granted in this Agreement, Careswitch hereby retains all right, title, and interest, including all intellectual property rights, in and to the Careswitch Technology. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY CARESWITCH.

7.7 Feedback.Customer hereby grants to Careswitch and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all feedback and suggestions provided by Customer and its Admin Users (collectively, “Feedback”), including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Careswitch Technology or any portion thereof.

8. CONFIDENTIALITY

8.1 Definition of Confidential Information. “Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the non-public features of the Careswitch Technology are the Confidential Information of Careswitch. However, Confidential Information does not include any information which (i) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (ii) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (iv) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.

8.2 Use and Maintenance of Confidential Information. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Notwithstanding the foregoing, Careswitch may disclose Customer Content to (i) Admin Users and to other users of the Service, such as Caregivers, as permitted by the features and functionality of the Service, and (ii) to Careswitch’s contractors and service providers (such as Careswitch’s hosting provider) so that these service providers can provide services on Careswitch’s behalf, provided that such service providers are bound by confidentiality obligations. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment.

9. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY

9.1 Customer Warranties; Indemnification. Customer represents, warrants, and covenants that it has and will maintain during the term of the Agreement all necessary right, title, interest, authorizations, and permissions to: (i) provide, disclose, or submit any Customer Content and/or Feedback that Customer provides, discloses, or submits to Careswitch or the Service; and (ii) grant the rights and permissions granted hereunder with respect to Feedback and Customer Content. Customer shall indemnify and hold harmless and, at Careswitch’s request, defend, Careswitch and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Careswitch Entities”) from and against any third party claim, loss, or damage (including reasonable attorney’s fees), arising out of or relating to (i) an allegation that the use by or on behalf of Careswitch of any of the Customer Content in accordance with this Agreement infringes, misappropriates or violates any third party’s rights or violates applicable laws; (ii) Customer’s use of the Service or any Careswitch Technology in violation of this Agreement, and (iii) any dispute between Customer and/or its Admin Users and any Caregiver or other users of the Service. If Careswitch requires Customer to defend any such claim, Careswitch will provide all information and assistance reasonably requested by Customer in connection with defense or settlement of any such claim. Notwithstanding the foregoing, Careswitch will at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Careswitch’s own expense.

9.2 No Medical Advice. All Content, other than Customer Content, made available by Careswitch or created by Careswitch, including, but not limited to, blogs, answers to frequently asked questions, or podcasts on the Service, is provided on an information-only basis. The Service is not intended to provide medical advice nor to diagnose or treat any medical conditions, and therefore Customer should not rely on such information or guidance when making medical or healthcare decisions. Customer acknowledges that it should not inform Caregivers that they can rely on or take (or not take) any medical decision based on any information, guidance, or suggestions provided by Careswitch found on or obtained through the Service. Customer agrees that it will advise Caregivers that they should always consult a healthcare professional for advice on the diagnosis or treatment of any condition or for any other medical need or care instructions.

9.3 Not Intended As Electronic Health Records Service. The Service is not intended as, and should not be relied upon as, an electronic health records service or database, or as any database as a service, records storage or retention service. Customer and/or its Admin Users are solely responsible for storing and saving any records, content, information, data and advice shared or made available through the Service. Customer and its Admin Users are responsible for downloading Customer Content for their permanent records. Customer and its Admin Users are solely responsible for meeting all record retention requirements applicable to their business under appliable law. Careswitch has no responsibility or liability for the deletion or accuracy of any Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service.

9.4 Release.Careswitch expressly disclaims any liability that may arise between users of the Service. Unless otherwise specified herein, because Careswitch is not a party to the actual contracts between Customer and Caregivers, in the event that Customer has a dispute with one or more Caregivers or other users of the Service, Customer releases Careswitch, its parents, subsidiaries, affiliates, officers, employees, investors, agents, Payment Processors, licensors (other than such user), and partners (each a "Careswitch Party" and collectively, the "Careswitch Parties") from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If Customer is a California resident, Customer hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Careswitch Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service provided hereunder.

9.5 Disclaimer.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE SERVICE, OTHER CARESWITCH TECHNOLOGY, AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS; (ii) THE CARESWITCH ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE SERVICE, OTHER CARESWITCH TECHNOLOGY, AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE THROUGH THE SERVICE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE, OR RELIANCE. THE CARESWITCH ENTITIES DO NOT WARRANT ANY THIRD-PARTY SERVICE OR FUNCTIONALITY, INCLUDING THE AI TOOLS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CARESWITCH ENTITIES DO NOT WARRANT THAT THE SERVICE, CARESWITCH TECHNOLOGY, OR ANY OTHER MATERIALS, ADVICE, OR CONTENT MADE AVAILABLE THROUGH THE CARESWITCH TECHNOLOGY WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS ADMIN USERS FROM THE SERVICE OR OTHER CARESWITCH TECHNOLOGY WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.

9.6TO THE FULLEST EXTENT PERMITTED BY LAW, THE CARESWITCH ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER’S OR ITS ADMIN USERS’ USE OF OR ACCESS TO THE SERVICE, CARESWITCH TECHNOLOGY, OR ANY OTHER MATERIALS OR CONTENT MADE AVAILABLE THROUGH THE SERVICE. CUSTOMER SHOULD NOT RELY SOLELY ON ANY ADVICE, INFORMATION, OR CONTENT OBTAINED THROUGH THE SERVICE, INCLUDING WHEN MAKING CARE DECISIONS AND HIRING DECISIONS OF CARETAKERS, AND CUSTOMER ASSUMES THE RISK OF USING ANY SUCH ADVICE, INFORMATION, OR CONTENT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S AND ITS ADMIN USERS’ USE OF THE SERVICE, OTHER CARESWITCH TECHNOLOGY, AND ANY CONTENT OR MATERIALS THAT ARE ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SERVICES, ARE AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CARESWITCH ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY, INCLUDING ANY CUSTOMER SYSTEMS USED IN CONNECTION WITH THE CARESWITCH TECHNOLOGY OR ANY LOSS OF DATA. NOTWITHSTANDING THE FORGOING THE CARESWITCH ENTITIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT THE CARESWITCH ENTITIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

9.79.7 FOR CLARITY, ANY AI TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE ANY WARRANTY OR GUARANTEE THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED, OR INFORMATIVE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. CARESWITCH DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES THAT THE AI TOOLS LEVERAGE THIRD-PARTY SERVICES AND THAT CARESWITCH IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD CARESWITCH LIABLE, FOR THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE AI TOOLS AND ANY OUTPUT RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE.

9.8 Limitation of Liability.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE CARESWITCH ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE CARESWITCH ENTITIES’ TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. EXCEPT FOR ANY ACTION BY CARESWITCH FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

10. GENERAL PROVISIONS

10.1 Publicity. Careswitch may list Customer as a customer in its promotional and marketing materials, including its website.

10.2 Assignment. Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Careswitch may assign this Agreement without the written consent of Customer as part of a corporate reorganization or upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

10.3 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

10.4 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit filed there against Customer by Careswitch arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

10.5 Modifications to this Agreement. Careswitch may modify this Agreement from time to time by giving notice to Customer through Careswitch’s online user interfaces, by sending Customer an email to the e-mail address last provided to Careswitch (if any), by prominently posting notice of the changes on the Service, or in any other manner permitted by this Agreement. In the event that the last e-mail address that Customer has provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, Careswitch’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Unless a shorter period is specified by Careswitch (e.g. due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s subscription or entry into a new Order, whichever occurs first. If Careswitch specifies that the modifications to this Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Careswitch in writing via the help center messenger of Customer’s objection to the modifications within thirty (30) days after the date of such notice, Careswitch (at its option and as Customer’s exclusive remedy) will allow Customer to terminate this Agreement and receive a pro-rata refund of any pre-paid subscription fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service and, in any event, continued use of the Service after the modified version of this Agreement becomes effective will constitute Customer’s acceptance of such modified version.

10.6 Export Controls; Government Rights. Customer agrees that Customer will not, and will ensure that its Admin Users will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Service or any other Careswitch Technology or any technical information about the Service or Careswitch Technology to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export. Customer hereby represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. The Service and other Careswitch Technology, including the Documentation, is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display, or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

10.7 Miscellaneous. This Agreement is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement will apply unless the Order expressly indicates that a provision of the Order should supersede contrary language in the Agreement. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Careswitch to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. Except as set forth in Section 10.5, this Agreement may only be amended by a writing signed by both parties. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed. Notices to Customer may be sent to any e-mail address or mailing address associated with Customer’s Account. Notices to Careswitch should be given to: Legal Dept., Careswitch, Inc., 228 Park Ave. S., #24738, New York, NY 10003. Either party may substitute its address for notice by providing written notice thereof to the other party. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, or 3 days after deposit in the mail. The relationship between the parties shall be that of independent contractors. Careswitch may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.

Intellectual Property Policy

It is Careswitch’s policy to terminate Account privileges of any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to Careswitch by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if Customer believes that the content of any material uploaded or posted onto the Service infringes its intellectual property rights, please provide Careswitch’s designated intellectual property agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (ii) a description of the copyrighted work, trademark, or other intellectual property right that Customer claims has been infringed; (iii) a description of the location on the Service of the material that Customer’s claim is infringing; (iv) Customer’s address, telephone number, and email address; (v) a written statement by Customer that Customer has a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (vi) a statement by Customer, made under penalty of perjury, that the above information in Customer notice is accurate and that Customer is the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner’s behalf. Contact information for Careswitch’s designated agent for notice of claims of infringement is as follows: Legal Dept., Careswitch, Inc., 228 Park Ave. S., #24738, New York, NY 10003.

Business Associate Addendum

This Business Associate Addendum (“BAA”), together with the Terms of Use, Order(s) and any supplemental terms incorporated therein by reference forms part of the Agreement between Careswitch, Inc. (“Careswitch”) and the customer identified in the Order(s) “Customer”), and applies to the processing of PHI by the parties in connection with the Agreement, for the purposes of complying with the U.S. Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and their implementing regulations (collectively, “HIPAA”). The parties acknowledge that Customer is a “covered entity” or “business associate” as defined under HIPAA and as Careswitch will be receiving, creating or otherwise processing PHI for or on behalf of Customer, each party will therefore have obligations regarding the confidentiality and privacy of PHI that Careswitch receives from, creates or otherwise processes for or on behalf of, Customer.

1. EFFECTIVENESS.

This BAA will become effective on the effective date of the Agreement (“Effective Date”) unless otherwise agreed by the parties.

2. DEFINITIONS.

For the purposes of this BAA, capitalized terms shall have the meanings ascribed to them below. All capitalized terms used but not otherwise defined herein will have the meaning ascribed to them by HIPAA.

2.1 “Protected Health Information” or "PHI" is any information, whether oral or recorded in any form or medium that is created, received, maintained, or transmitted by Careswitch for or on behalf of Customer, that identifies an individual or might reasonably be used to identify an individual and relates to: (i) the individual’s past, present or future physical or mental health; (ii) the provision of health care to the individual; or (iii) the past, present or future payment for health care.

2.2 “Secretary” shall refer to the Secretary of the U.S. Department of Health and Human Services.

2.3 “Unsecured PHI” shall mean PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary (e.g., encryption). This definition applies to both hard copy PHI and electronic PHI.

3. OBLIGATIONS OF CARESWITCH.

3.1 General Compliance with Law. Careswitch represents and warrants that it, its agents and its subcontractors: (i) shall use or disclose PHI only in connection with fulfilling its duties and obligations under this BAA and the Agreement; (ii) shall not use or disclose PHI other than as permitted or required by this BAA or Required by Law; (iii) shall not use or disclose PHI in any manner that violates applicable federal and state laws or would violate such laws if used or disclosed in such manner by Customer; and (iv) shall only use and disclose the minimum necessary PHI for its specific purposes.

3.2 Use and Disclosure of Protected Health Information. Subject to the restrictions set forth throughout this BAA, Careswitch may use PHI received from Customer if necessary for (i) the proper management and administration of Careswitch; or (ii) to carry out the legal responsibilities of Careswitch; or (iii) product development purposes. Subject to the restrictions set forth in throughout this BAA, Careswitch may disclose PHI for the proper management and administration of Careswitch, provided that: (i) disclosures are Required by Law, or (ii) Careswitch obtains reasonable assurances from the person or entity to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person or entity, and the person or entity notifies the Careswitch of any instances of which it is aware in which the confidentiality of the information has been breached. Careswitch is permitted, for Data Aggregation purposes to the extent permitted under HIPAA, to use, disclose, and combine PHI created or received on behalf of Customer pursuant to this BAA and the Agreement with PHI, as defined by 45 C.F.R. 160.103, received by Careswitch in its capacity as a business associates of other covered entities or business associates, to permit data analyses that relate to the Health Care Operations of the respective covered entities and/or Customer. Careswitch may de-identify any and all PHI created or received by Careswitch under this BAA. Once PHI has been de-identified pursuant to 45 CFR 164.514(b), such information is no longer Protected Health Information and no longer subject to this BAA.

3.3 Customer Obligations. To the extent that Careswitch is to carry out any of Customer’s obligations that are regulated by HIPAA as a covered entity obligation, Careswitch shall comply with the HIPAA requirements that apply to Customer in the performance of such obligation.

3.4 Safeguards. Careswitch shall employ appropriate administrative, technical and physical safeguards, consistent with the size and complexity of Careswitch’s operations, to protect the confidentiality of PHI and to prevent the use or disclosure of PHI in any manner inconsistent with the terms of this BAA. Careswitch shall comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI to prevent use or disclosure of such electronic PHI other than as provided for by this BAA.

3.5 Availability of Books and Records. Careswitch shall permit the Secretary and other regulatory and accreditation authorities to audit Careswitch’s internal practices, books and records at reasonable times as they pertain to the use and disclosure of PHI in order to ensure that Customer and/or Careswitch is in compliance with the requirements of HIPAA.

3.6 Individuals’ Rights to Their PHI.

• Access to Information.To the extent Careswitch maintains PHI in a Designated Record Set, in order to allow Customer to respond to a request by an Individual for access to PHI pursuant to 45 CFR Section 164.524, Careswitch, within ten (10) business days upon receipt of written request by Customer, shall make available to Customer such PHI. In the event that any Individual requests access to PHI directly from Careswitch, Careswitch shall forward such request to Customer within five (5) business days. Customer will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Careswitch will make no such determinations. Except as Required by Law, only Customer will be responsible for releasing PHI to an Individual pursuant to such a request. Any denial of access to PHI determined by Customer pursuant to 45 CFR Section 164.524, and conveyed to Careswitch, shall be the responsibility of Careswitch, including resolution or reporting of all appeals and/or complaints arising from denials.
• Amendment to Information.To the extent Careswitch maintains PHI in a Designated Record Set, in order to allow Customer to respond to a request by an Individual for an amendment to PHI, Careswitch shall, within ten (10) business days upon receipt of a written request by Customer, make available to Customer such PHI. In the event that any Individual requests amendment of PHI directly from Careswitch, Careswitch shall forward such request to Customer within five (5) business days. Customer will be responsible for making all determinations regarding the grant or denial of an Individual’s request for an amendment to PHI and Careswitch will make no such determinations. Any denial of amendment to PHI determined by Customer pursuant to 45 CFR Section 164.526, and conveyed to Careswitch by Customer, shall be the responsibility of Customer, including resolution or reporting of all appeals and/or complaints arising from denials. Within ten (10) business days of receipt of a request from Customer to amend an Individual’s PHI in the Designated Record Set, Careswitch shall incorporate any approved amendments, statements of disagreement, and/or rebuttals into their Designated Record Set as required by 45 CFR Section 164.526.
• Accounting of Disclosures.In order to allow Customer to respond to a request by an Individual for an accounting pursuant to 45 CFR Section 164.528, Careswitch shall, within ten (10) business days of a written request by Customer for an accounting of disclosures of PHI about an Individual, make available to Customer such PHI. At a minimum, Careswitch shall provide Customer with the following information: (a) the date of the disclosure; (b) the name of the entity or person who received the PHI, and if known, the address of such entity or person; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of such disclosure. In the event that any Individual requests an accounting of disclosures of PHI directly from Careswitch, Careswitch shall forward such request to Customer within five (5) business days. Customer will be responsible for preparing and delivering an accounting to Individual. Careswitch shall implement an appropriate record keeping process to enable it to comply with the requirements of this BAA.

3.7 Disclosure to Subcontractors and Agents.Notwithstanding anything to the contrary in the Agreement, Careswitch, subject to the restrictions set forth in this provision, may use subcontractors and agents to fulfill its obligations under this BAA. Careswitch shall obtain and maintain a written agreement with each subcontractor or agent that has or will have access to PHI, which is received from, or created or received by, Careswitch for or on behalf of Customer, pursuant to which such subcontractor and agent agrees to be bound by the same or substantially similar restrictions, terms, and conditions that apply to Careswitch under this BAA with respect to such PHI.

3.8 Reporting Obligations.In the event of a Breach of any Unsecured PHI that Careswitch accesses, maintains, retains, modifies, records, or otherwise holds or uses on behalf of Customer, Careswitch shall report such Breach to Customer as soon as practicable, but in no event later than ten (10) business days after the date the Breach is discovered. Notice of a Breach shall include, to the extent such information is available to Careswitch: (i) the date of the Breach, if known, and the date of discovery of the Breach; (ii) the scope of the Breach; and (iii) Careswitch’s response to the Breach. In the event of a use or disclosure of PHI that is improper under this BAA but does not constitute a Breach or successful Security Incident, Careswitch shall report such use or disclosure to Customer within ten (10) business days after the date on which Careswitch becomes aware of such use or disclosure. In the event of any successful Security Incident, Careswitch shall report such Security Incident in writing to Customer within ten (10) business days of the date on which Careswitch becomes aware of such Security Incident. The parties acknowledge that unsuccessful Security Incidents that occur within the normal course of business shall not be further reported pursuant to this BAA. Such unsuccessful Security Incidents include, but are not limited to, port scans or “pings,” and unsuccessful log-on attempts, broadcast attacks on Careswitch’s firewall, denials of service or any combination thereof if such incidents are detected and neutralized by Careswitch’s anti-virus and other defensive software and not allowed past Careswitch’s firewall. Careswitch will identify and respond internally to any suspected or known Breach of any Unsecured PHI, Security Incident or other improper use or disclosure of PHI, and will mitigate, to the extent practicable, their harmful effects, document their outcomes, and provide documentation of any successful Security Incident and Breach of any Unsecured PHI to Customer upon request.

4. OBLIGATIONS OF CUSTOMER.

4.1 Permissable Requests. Customer shall not request Careswitch to use or disclose PHI in any manner that would violate applicable federal and state laws if such use or disclosure were made by Customer. Customer may request Careswitch to disclose PHI directly to another party only for the purposes allowed by HIPAA.

4.2 Notifications. Customer shall notify Careswitch of any limitation in any applicable notice of privacy practices in accordance with 45 CFR Section 164.520, to the extent that such limitation may affect Careswitch’s use or disclosure of PHI. Customer shall notify Careswitch of any changes in, or revocation of, permission by an Individual to use or disclose PHI, to the extent that such changes may affect Careswitch’s use or disclosure of PHI. Customer shall notify Careswitch of any restriction to the use or disclosure of PHI that Customer has agreed to in accordance with 45 CFR Section 164.522, to the extent that such restriction may affect Careswitch’s use or disclosure of PHI.

5. TERM AND TERMINATION

5.1 General Term and Termination. This BAA shall become effective on the Effective Date and shall terminate upon the termination or expiration of the Agreement and when all PHI provided by either party to the other, or created or received by Careswitch on behalf of Customer is, in accordance with this Section, destroyed, returned to Customer, or protections are extended.

5.2 Material Breach. Where either party has knowledge of a material breach by the other party, the non-breaching party shall provide the breaching party with an opportunity to cure. Where said breach is not cured to the reasonable satisfaction of the non-breaching party within twenty (20) business days of the breaching party’s receipt of notice from the non-breaching party of said breach, the non-breaching party shall, if feasible, terminate this BAA and the portion(s) of the Agreement affected by the breach. Where either party has knowledge of a material breach by the other party and cure is not possible, the non-breaching party shall, if feasible, terminate this BAA and the portion(s) of the Agreement affected by the breach.

5.3 Return or Destruction of PHI. Upon termination of this BAA for any reason, Careswitch shall: (i) if feasible as determined by Careswitch, return or destroy all PHI received from, or created or received by Careswitch for or on behalf of Customer that Careswitch or any of its subcontractors and agents still maintain in any form, and Careswitch shall retain no copies of such information; or (ii) if Careswitch determines that such return or destruction is not feasible, extend the protections of this BAA to such information and limit further uses and disclosures to those purposes that make the return or destruction of the PHI infeasible, in which case Careswitch’s obligations under this Section shall survive the termination of this BAA.

6. MISCELLANEOUS

6.1 Amendment. If any of the regulations promulgated under HIPAA are amended or interpreted in a manner that renders this BAA inconsistent therewith, the parties shall amend this BAA to the extent necessary to comply with such amendments or interpretations.

6.2 Interpretation. Any ambiguity in this BAA shall be resolved to permit the parties to comply with HIPAA.

6.3 Conflicting Terms. In the event that any terms of this BAA conflict with any terms of the Agreement, the terms of this BAA shall govern and control.

6.4 Notices. Any notice pertaining to this BAA shall be given in writing and shall be deemed duly given if provided in the manner prescribed in the Agreement

6.5 Limitation of Liabilitity. The parties acknowledge and agree that the limitation of liability provisions set forth in other portions of this Agreement shall apply to this BAA.

6.6 Severability. The provisions of this BAA shall be severable, and if any provision of this BAA shall be held or declared to be illegal, invalid or unenforceable, the remainder of this BAA shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained herein.