End User Customer Agreement for VitalPoint®

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS AND OUR PRIVACY POLICY CAREFULLY BEFORE USING the VitalPoint® software, the VitalPoint Express app, the web site located at https://vitalpoint.helioscomp.com or https://vitalpoint.pmsionline.com, and any related products or services (collectively referred to as the Licensed Application, as further defined below). By installing, logging in and using the Licensed Application, you and your employer (collectively, “You”) agree to this End User Customer Agreement (this “Customer Agreement”).

This Customer Agreement governs Your access to, and use of, the Licensed Application and the Content (as defined below). The Licensed Application and Content are available for Your use only on the condition that You agree to this Customer Agreement. If You do not agree to all of the terms and conditions of this Customer Agreement, You may not access or use the Licensed Application or any content provided by the Licensed Application.

BY COMPLETING THE REGISTRATION PROCESS AND/OR LOGGING IN AND USING THE LICENSED APPLICATION, YOU AGREE, ON YOUR OWN BEHALF AND ON YOUR EMPLOYER’S BEHALF, TO BE LEGALLY BOUND BY THIS CUSTOMER AGREEMENT. PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. IF YOU, OR ANY OF YOUR EMPLOYERS, DO NOT WISH TO BE BOUND BY THE THESE TERMS AND CONDITIONS, PLEASE EXIT THE LICENSED APPLICATION NOW. THE REMEDY FOR DISSATISFACTION WITH THE LICENSED APPLICATION, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THE LICENSED APPLICATION, IS TO STOP USING THE LICENSED APPLICATION. YOUR AGREEMENT WITH THE OWNERS OF THE LICENSED APPLICATION REGARDING COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS IN THIS CUSTOMER AGREEMENT BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THE LICENSED APPLICATION.

Section 1. Definitions

1.01 “Licensed Application” shall mean the VitalPoint® application, the web site located at https://vitalpoint.helioscomp.com or https://vitalpoint.pmsionline.com, the VitalPoint Express application, and any related products or services including, without limitation, all web pages, web services, password protected content, and similar content hosted on the web site located at https://vitalpoint.helioscomp.com or https://vitalpoint.pmsionline.com and the VitalPoint® application

1.02. “Content” shall mean any and all information, graphics, products, services, features, functionality, coding, applications, programs, computer files, data, materials, emails, communications, and links available on or through, or generated by the Licensed Application.

1.03. “Term” shall mean the period commencing immediately upon Your first use of the Licensed Application and ending on the final termination (whether by You or by the Owners) of Your use of the Licensed Application, unless terminated at an earlier date in accordance with the terms and conditions of this Customer Agreement.

1.04 “Owners” means the corporations or entities that own and control the Licensed Application, including PMSI, LLC, Progressive Medical, LLC, its parent, subsidiaries and affiliate entities, and each of its respective officers, directors, agents, present and former employees, partners, shareholders, predecessors, successors, assigns, and representatives.

Section 2. Scope of Customer Agreement

2.01. This Customer Agreement governs Your access to and use of the Licensed Application and Content and it supersedes any marketing or other similar material pertaining to the Licensed Application and Content delivered to You, whether in writing, verbally or otherwise.

2.02 The Licensed Application is provided to You as a platform, accessed through a single sign-on, used by claims professionals to manage pharmacy authorizations, clinical documents and proactively manage medications and physicians. The Licensed Application does not contain a complete description of all terms, conditions and exclusions to the products and services described. All pricing and terms and conditions for the products and services identified by the Licensed Application shall be based upon and governed by the contractual agreements between You and the vendor partner providing the service or product. All orders and authorizations submitted using the Licensed Application will be authorized for provisioning and will be billed to You by the applicable vendor partner as established pursuant to the terms and conditions of the agreement between You and the vendor.

Section 3. Modifications

3.01. The Owners may revise and update the Customer Agreement at any time. You agree to review the Customer Agreement periodically to be aware of such revisions or updates. Your continued usage of the Licensed Application or Content after any revisions or updates to the Customer Agreement will mean that You accept those revisions or updates to the Customer Agreement. If You do not agree to any such revision or update, You should contact the Owners and immediately stop using the Licensed Application and Content. You can determine if this Customer Agreement has changed by reviewing the release date at the bottom of this document. If You determine that a given change has a material, detrimental effect on your rights and obligations under the Customer Agreement, you may terminate this Customer Agreement as described in Section 4.02 below. If You terminate within thirty (30) days of a given version of this Customer Agreement going into effect, You will be bound the prior version that was in effect prior to the change that resulted in Your termination.

3.02. The Licensed Application and Content, and any aspect thereof, may be changed, supplemented, deleted, interrupted, unavailable, or updated without notice to You and at the sole discretion of the Owners.

3.03. You understand that the Licensed Application and Content may include errors, mistakes, inaccuracies or typographical errors. You agree to use reasonable judgment in interpreting and using the Licensed Application and Content. You also understand that the Licensed Application and Content may be periodically unavailable for reasons that may or may not be within the Owners’ control. You also understand that some of the Content will comprise or be based on information entered or supplied by third parties who are not under the control of the Owners and agree to hold the Owners harmless should any damages result from errors, misrepresentations, or other inaccuracies in such information, or the timeliness or untimeliness of any such information. You further agree that You are solely responsible for the security of any device and/or computer, and any network connection, that You use to access the Licensed Application, and understand that the Licensed Application may be subject to hacking, viruses or other attacks by third parties. While the Owners take precautions to defend against and protect against such attacks, there is always a risk that such an attack will be successful, and by using the Licensed Application, You are acknowledging that you understand and accept that risk.

Section 4. Termination of Use

4.01. The Owners may discontinue, suspend or modify the Licensed Application or Content at any time without notice and may block, terminate, or suspend Your access to the Licensed Application or Content at any time without notice for any reason in its sole discretion, even if access continues to be allowed to others. Further, You agree that the Owners shall not be liable to You or any third party for any termination or suspension of Your access to the Licensed Application or Content.

4.02. You may terminate this Customer Agreement at any time by ceasing to use or access the Licensed Application. If you terminate due to an objection to a revised version of this Customer Agreement, but accessed the Licensed Application after that version went into effect, you must send written notice to the Owners by emailing John W. Bencivenga at John.Bencivenga@helioscomp.com, and then make no further use of the Licensed Application whatsoever. If such an email is received by the Owners within thirty (30) days of the effective date of the change, You will not be bound by the changed version of the Customer Agreement. If such an email is not received within thirty (30) days of the effective date of the change, then You will be bound by the latest version of this Customer Agreement if you later terminate.

Section 5. Ownership, License and Restrictions on Use

5.01. The Licensed Application and Content are protected by United States and international copyright, trademark, and other laws. All rights reserved. Any and all right, title, and interest (including, without limitation, all copyrights, trademarks, and other intellectual property rights) in the Licensed Application and Content belong to the Owners, its affiliates or licensors. Elements of the Licensed Application and Content are also protected by trade dress, unfair competition, trade secret and other laws and may not be copied or imitated in whole or in part. All custom graphics, icons, and other items that appear on the Licensed Application or in the Content are trademarks, service marks, or trade dress ("Marks") of the Owners, their affiliates or licensors and may not be used or interfered with in any manner without the express written consent of the Owners. The Owners do not convey to You any ownership rights in the Licensed Application or Content. Further You may not use the Licensed Application or Content to infringe the intellectual property rights or other rights of the Owners or any third parties in any way

5.02. The Owners grants You a nontransferable, nonassignable, limited, nonsublicensable, revocable, personal, license, during the Term, to access and use the Licensed Application and Content only in the manner presented by the Owners (the “License”). The License shall terminate automatically upon the occurrence of any of (i) termination by the Owners in its sole discretion, (ii) Your material breach of any term or condition of this Customer Agreement, or (iii) Your notice to the Owners of Your intention to terminate the License. Upon termination, You agree to immediately cease using or accessing the Licensed Application and Content. Except for this limited license, the Owners do not convey any interest in or to the Licensed Application by permitting You to access the Licensed Application.

5.03. You may not copy, modify, translate, transmit, distribute, adapt, reproduce, republish, decompile, reverse engineer, create derivative works from, modify, sell, loan, lease, or disassemble any part of the Licensed Application or Content in any manner without the prior express written consent of the Owners. You may not use the Licensed Application and Content or make any attempt to penetrate, modify or manipulate the Licensed Application and Content or any of the Owners’ hardware or software in order to invade the privacy of, obtain the identity of, or obtain any personal information about (including, but not limited to, IP addresses of) any the Owners’ account holder or user, or modify, erase or damage any information contained on the computer of any user connected to the Licensed Application. You may not make, sell, offer for sale, modify, reproduce, display, publicly perform, import, distribute, retransmit, or otherwise use the Licensed Application or Content without the express written consent of the Owners. You may use the Licensed Application and the Content only for the purpose of engaging in good faith business transactions with the Owners and the vendors offering products and services through the Licensed Application.

5.04.1 Confidentiality Obligations: The Licensed Application and Content, including without limitation those portions accessible by You through Your use of Your password (collectively “Password Site”) are considered confidential and proprietary trade secrets of the Owners. Accordingly, You agree to hold the Password Site in trust and confidence for the Owners and shall protect the Password Site with the same degree of care as You employ for the protection of Your own trade secrets and confidential information (but in no event shall the degree of care be less than reasonable efforts). You agree not to use the Password Site for any purpose not expressly permitted under this Customer Agreement, and further agree to keep the Password Site confidential and not to disclose, reveal, transfer, publish, or make accessible directly or indirectly the Password Site or any portion thereof to any third party without the express prior written consent of the Owners. The obligations set forth in this paragraph 5.04.1 shall continue after any termination of this Customer Agreement.

5.04.2 Equitable Remedy. In the event of any actual or threatened breach by You of any provision of this Section 5.04, You acknowledge that the Owners will incur significant and irreparable damage for each such breach and that the Owners have no adequate remedy at law for such breach. Therefore, the Owners shall be entitled to injunctive relief immediately and permanently restraining You from such continuing and/or threatened breach. In addition, You shall be liable to the Owners for any and all damages and other losses caused by any such breach. The rights and remedies of the parties hereto shall not be mutually exclusive, and the exercise of one or more rights or remedies provided for by this Agreement or by law, equity, statute, or otherwise shall not preclude the parties from exercising any other right or remedy. Nothing herein shall be construed as a waiver by the Owners of any right it may have or hereafter acquire to monetary damages by reason of any injury to its property, business or reputation or otherwise arising out of any wrongful act or omission.

5.04.3 Term of Confidentiality Obligations. Your obligations set forth in Sections 5.04.1 and 5.04.2 will survive for a period of five (5) years after the termination of this Agreement, and will bind You, Your representatives, successors and assigns, if any; provided, however, that such obligations will terminate with respect to any portions of the Password Site which, without fault on Your part, no longer require Your use of Your password to access and are accessible to the general public through the Licensed Application. The burden of proving the applicability of the above exception will at all times be with You. No item of the Password Site will be deemed to fall within the above exception merely because such item is embraced by more general information that falls within the above exception. If You become legally compelled by subpoena or similar legal process to disclose any portion of the Password Site, You shall give the Owners advanced prompt written notice of such requirement so that the Owners may seek a protective order or other appropriate remedy or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Owners waives compliance with the terms hereof, You agree to provide only that limited portion of the Password Site that You are advised by legal counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such portion of the Password Site.

5.05. In connection with Your use and access to the Licensed Application and Content, You agree to abide by our Privacy Policy (which may be accessed at http://www.helioscomp.com/privacy-policy, and is incorporated by specific reference into this Customer Agreement) and all applicable privacy and security laws and regulations, including, without limitation, the Health Insurance Portability and Accountability Act (“HIPAA”) and other applicable laws, administrative rules, and regulations. To the extent any provision of this Customer Agreement is inconsistent with any provision of the Privacy Policy or any business associate agreement between You and the Owners, all of those Agreements will be interpreted together to give the greatest permissible protection to the Owners.

5.06. You agree not to: (1) restrict or inhibit any other user from using and enjoying the Licensed Application or any other of the Owners’ property or system; (2) use the Licensed Application to engage in or encourage fraudulent conduct or conduct that would constitute any other criminal offense or give rise to civil liability; (3) use the Licensed Application to distribute in any manner any harmful, obscene or otherwise illegal or objectionable material of any kind; (4) use the Licensed Application to spoof or otherwise impersonate any individual or entity, or forge, delete or alter any part of the TCP/IP packet header information in any e-mail or other posting; (5) harvest, collect or store user information on the Licensed Application including, but not limited to, e-mail addresses; (6) violate or attempt to violate the security of the Licensed Application; (7) input or upload any information to the Licensed Application which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system or web site; (8) frame or utilize framing techniques to enclose any portion or aspect of the Licensed Application, without the express written consent of the Owners; (9) use the Licensed Application or Content to compete with the Owners; or (10) assist or permit any persons in engaging in any of the activities described above.

Section 6. Copyright Agent and Complaints

6.01. The Owners respect the intellectual property of others, and we require all users of the Licensed Application and the Content to do the same. If You believe that the Licensed Application or Content includes Your work of authorship or a derivative based on Your work of authorship, or has been copied or used in the Licensed Application or the Content in a way that constitutes copyright infringement, please provide our copyright agent the following information:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that You claim has been infringed;
• Identification of the material that You claim to be infringing or to be the subject of infringing activity and that is to be removed, and the location of that material on the website;
• Information reasonably sufficient to permit the Owners to contact the complaining party (e.g., the address, telephone number or email address);
• A statement by You that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
• A statement by You, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent for Notice of claims of copyright infringement on the site can be reached by directing an e-mail to the Copyright Agent William (Ty) Giltinan at WGiltinan@cfjblaw.com or by mail: Ty Giltinan, Carlton Fields, 4221 W. Boy Scout Blvd., Ste. 1000 Tampa, Florida 33607-5780.

Section 7. Disclaimer of Warranty

7.01. THE LICENSED APPLICATION AND CONTENT ARE PROVIDED ON AN "AS IS" BASIS. THE OWNERS, THEIR AFFILIATES AND LICENSORS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS OF RESPONSES, WORKMANLIKE EFFORT, LACK OF VIRUSES, LACK OF NEGLIGENCE, TITLE AND NON-INFRINGEMENT, REGARDING IN ANY WAY THE LICENSED APPLICATION AND CONTENT AND YOUR ABILITY OR INABILITY TO USE THE LICENSED APPLICATION OR CONTENT. THE OWNERS AND THEIR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, SECURITY, OR TIMELINESS OF THE LICENSED APPLICATION OR CONTENT. NO INFORMATION OBTAINED BY YOU FROM THE LICENSED APPLICATION OR CONTENT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED BY THE OWNERS IN THIS CUSTOMER AGREEMENT. THE OWNERS MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE LICENSED APPLICATION OR CONTENT. THE USE OF THE LICENSED APPLICATION AND CONTENT IS AT YOUR OWN RISK. ANY PRICING OR PRICE QUOTE RECEIVED BASED ON THE USE OF THE LICENSED APPLICATION IS SUBJECT YOUR VERIFICATION PURSUANT TO THE TERMS AND CONDITIONS OF A SEPARATE AGREEMENT BETWEEN YOU AND THE APPROPRIATE VENDOR OF ANY SERVICES.

7.02. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 7 MAY NOT APPLY TO YOU. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THE CUSTOMER AGREEMENT ARE FAIR AND REASONABLE.

Section 8. Limitation of Liability

8.01. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT THE OWNERS ARE OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, THE OWNERS ARE RESPONSIBLE FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE OWNERS, THEIR AFFILIATES AND LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO USE THE LICENSED APPLICATION OR CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE OWNERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE ENTIRE LIABILITY OF THE OWNERS TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID TO THE OWNER FOR ACCESS TO THE LICENSED APPLICATION AND CONTENT OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER. TO THE EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THE CUSTOMER AGREEMENT ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THE CUSTOMER AGREEMENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THE CUSTOMER AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

Section 9. Indemnity

9.01. You agree to defend, indemnify and hold harmless the Owners and affiliate companies and their respective officers, directors, employees, vendors, agents and representatives against and from any and all losses, expenses, claims, demands, damages, judgments, suits or other actions arising in any way out of Your breach of this Customer Agreement, or any of Your use of or activities conducted in connection with the Licensed Application or Content.

Section 10. Jurisdiction

10.01. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY EXPRESSLY AGREE THAT ANY PROCEEDING ARISING OUT OF OR RELATING TO YOUR USE OF THE LICENSED APPLICATION OR CONTENT SHALL BE INSTITUTED IN THE STATE OF FLORIDA OR FEDERAL COURT SITTING IN THE COUNTY OF HILLSBOROUGH, STATE OF FLORIDA, UNITED STATES OF AMERICA AND YOU EXPRESSLY WAIVE ANY OBJECTION THAT YOU MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH PROCEEDING. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE LICENSED APPLICATION OR CONTENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.

Section 11. Governing Law

11.01. To the fullest extent permitted by law, the Customer Agreement is governed by the internal substantive laws of the State of Florida, excluding its conflicts of laws principles.

Section 12. General

12.01. You may not assign the Customer Agreement or any of Your interest, rights, or obligations under the Customer Agreement without the Owners’ prior written consent, which consent shall not be unreasonably withheld. The Owners, however, may freely assign the Customer Agreement with notice to, or consent from, You. Any such assignment will be deemed and treated as a change that will entitle You to terminate this Customer Agreement pursuant to Section 4.02 above. If any provision of the Customer Agreement is found to be invalid by any court having competent jurisdiction, that provision shall be enforced to the maximum extent permissible and the invalidity of such provision shall not affect the validity of the remaining provisions of the Customer Agreement, which shall remain in full force and effect. No waiver of any of portion of the Customer Agreement shall be deemed a further or continuing waiver of such portion or of any other term or condition. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Customer Agreement. The Customer Agreement constitutes the entire agreement between You and the Owners with respect to the Licensed Application and Content, the Owners’provision of the Licensed Application and Content, and Your use of and access to the Licensed Application and Content, and supersedes all discussions, communications, conversations, and agreements concerning the subject matter hereof. The title, section, and paragraph headings (if any) used in the Customer Agreement are for convenience only and have no legal or contractual effect.

This version of the Customer Agreement is effective as of June 30, 2015.