TERMS OF SERVICE

Effective Date: August 16, 2019

The following Terms of Service ("Terms") describe the terms and conditions on which H & R Accounts Inc., d/b/a Avadyne Health ("Company", "we" or "us") offers you access to the website at https://www.avadynehealth.com ("Site"), the Patient Concierge mobile application and any other mobile application that we offer from time to time (collectively, the “App”), and to other related websites, applications, services and mobile applications on or to which these Terms are linked or referenced and any services or mobile applications linked to or accessible to or through the Site (collectively, "Services").

Before accessing and using the Services, please read these Terms carefully because they constitute a legal agreement between Company and you.  BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE SERVICES, YOU AGREE TO THESE TERMS AND AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT TO DO SO.

IF YOU DO NOT AGREE TO ANY OF THESE TERMS, THEN PLEASE DO NOT USE THE SERVICES.

  1. CHANGES TO TERMS

The Effective Date of these Terms is set forth at the top of this webpage. As we add new features, we may need to modify these Terms. Whenever possible, we will provide you with advance written notice of our changes and will not make changes that have a retroactive effect unless we are legally required to do so. Your continued use of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of or agreements, notices or statements of or about the Terms.

  1. ADDITIONAL TERMS

Certain Services may be governed by additional terms and conditions presented in conjunction with them, such as the App as set forth in Section 6 below. You must agree to the additional terms before using the Services to which they relate.  These Terms and any additional terms will apply equally but if any additional term is irrevocably inconsistent with any provision of these Terms, the additional term will prevail to the extent of the inconsistency.

  1. PRIVACY

Please review our Privacy Policy, which is incorporated by reference, to learn about the information that we collect and how we process it.

Without limiting the terms of our Privacy Policy, you understand that Company does not and cannot guarantee that your use of the Services and/or the information provided by you through the Services will be private or secure. Company is not responsible or liable to you for any lack of privacy or security you may experience. You are responsible for using the precautions and security measures best suited for your situation and intended use of the Services.

Company reserves the right to disclose information as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request.

  1. COMPANY CONTENT

The Services, including any information, graphic, artwork, text, video clip, audio clip, trademark, logo and other content provided on, in or through the Services, (collectively, "Company Content") are owned by Company or its licensors and protected under both United States and foreign copyright, trademark and other laws.

Company grants to you a personal, nonexclusive, nontransferable and limited license (without the right to sublicense) to access and use the Services and download, print and/or copy Company Content solely for your own personal use and subject to these Terms. You acknowledge that the trade secrets and intellectual property embodied in the Services are not and will not be licensed or otherwise disclosed to you. All rights not expressly granted herein are reserved by Company.

  1. USING THE SERVICES

  1. Eligibility: You must be the age of legal majority or older in your place of residence to use the Services.

  1. Your Account: You are required to create an account ("Account") to use certain features of the Services. You agree that you will maintain your Account information to ensure that it is always current, complete and accurate. If you provide untrue, incomplete or inaccurate information, you understand that we have the right to terminate your Account and use of the Services.

By creating an Account, you agree that Company may contact you using the email address that you provide when activating your Account.

Please do not share access to your Account with anyone else. You are responsible for all use of your Account, including use by others to whom you have provided access to your Account.

  1. Your Responsibilities: You may use the Services for lawful, non-commercial purposes only. You may not use the Services in any manner that could damage, disable, overburden or impair our servers or networks or interfere with any other party's use and enjoyment of the Services.

You may not attempt to gain unauthorized access to the Services, other users' Accounts or Company's computer systems or networks, through hacking, password mining or any other means. Without limiting any of the foregoing, you agree that you shall not (and you agree not to encourage or allow any third party to):

Company has the discretion to terminate your access to the Services without notice for any violation of the above rules.

You are solely responsible for any and all charges, fees and other costs related to the use of the Services. If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through Wi-Fi or a participating mobile service provider.  You agree that you are solely responsible for all messages and data charges that you incur from your mobile service provider.

Certain services may require text messaging (SMS or MMS) capability. We do not impose a separate charge for text messaging services but message and data rates may apply.  All charges are billed by and payable to your mobile service provider.  Please contact your mobile service provider for pricing plans and details. Company is not liable for any delays in the receipt of any text messages as delivery is subject to effective transmission from your mobile service provider.  Text messages are provided on an "as is" basis and may not be available in all areas at all times.

Once you opt-in to receive text messages from us, the frequency of text messages that we send to you will depend on your transactions with us.  By agreeing to receive text messages, you understand and agree that Company may use an automatic dialing system to deliver text messages to you and that your consent is not required as a condition of purchase for any goods or services.

  1. Submissions. Company may from time to time offer areas in the Services where you and other users can post or otherwise submit suggestions, ideas, notes, concepts or other information or materials to or through the Services (collectively, "Submissions").  By sending, posting or transmitting Submissions to Company (and/or our designees) or any area of the Services, you grant the Company and our designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), transferable, royalty-free, perpetual, irrevocable right to use, reproduce, sublicense (through multiple tiers), distribute, create derivative works of, perform and import your Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you. In other words, Company has the automatic right to use your Submissions -- including reproducing, disclosing, publishing or broadcasting your Submission -- in any medium and for any purpose. Under no circumstances are you entitled to payment if Company uses one of your Submissions.  All Submissions are deemed non-confidential and non-proprietary.

You are the owner of and are responsible for your Submissions. By posting a Submission, you represent and warrant that you own or otherwise control all of the rights to your Submission, including without limitation all copyrights and trademarks; your Submission is true and accurate; and your Submission does not violate the rights of any other person or entity, such as rights of privacy and publicity; and your Submission complies with applicable laws, rules and regulations.

You acknowledge and agree that Company has the right (but not the obligation) to alter, remove or refuse to post or allow to be posted any Submission. Company takes no responsibility and assumes no liability for any Submission posted by you or any third party.

  1. TERMS APPLICABLE TO MOBILE APPLICATIONS

IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS APPLICABLE TO THE APP (“APP TERMS”), THEN PLEASE DO NOT USE THE APP.

Subject to these App Terms, Company grants you a limited, non-exclusive, and non-transferable license to:

You acknowledge and agree that the App is provided under license and not sold, to you. You do not acquire any ownership interest in the App under these App Terms or any other rights other than to download and use the App in accordance with the license granted and subject to all terms, conditions, and restrictions, under these Terms of Service.

You also agree that no portion of the App Content may be copied, modified, reverse engineered, reproduced, transmitted or distributed in any form by any means without the prior written permission of Company.  The App Content shall not be used for any unlawful or unauthorized purposes.  Company and any third-party provider of App Content do not guarantee the accuracy, completeness, timeliness or availability of the App Content.  Neither Company nor any of its third-party providers are responsible for errors or omissions or for the results obtained from the use of the App Content (or any portion thereof).

To withdraw your acceptance of these App Terms, you must uninstall the App.  

When you download any App from Apple’s App Store or Google Play (each, an “App Platform”), you acknowledge and agree that:

Without limiting the Privacy Policy, we may collect the following information when you use the App:

  1. UPDATES

Company may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, "Updates").  Updates may also modify or delete in their entirety certain features and functionality.

You understand and agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

If you are using the App, then, based on your mobile device settings and when your mobile device is connected to the internet, either:

Please promptly download and install all Updates.  The App may not properly operate if you do not download Updates.  

All Updates are deemed part of the Services and be subject to these Terms.

  1. LINKS TO OTHER SITES AND SERVICES

The Services may contain links to third-party websites and services, including social media (collectively, "Linked Services"). Linked Services are not under the control of Company and Company is not responsible for Linked Services or for any information or materials on, or any form of transmission received from, any Linked Services. The inclusion of a link does not imply endorsement by Company of the Linked Services or any association with the operators of the Linked Services. Company does not investigate, verify or monitor the Linked Services. Company provides links to Linked Services for your convenience only. You access Linked Services at your own risk.

  1. DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY

Company warrants that Company has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM DEFECTS, UNINTERRUPTED USE AND ALL WARRANTIES THAT MAY ARISE FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

ANY ORAL OR WRITTEN ADVICE PROVIDED BY COMPANY OR ITS AUTHORIZED AGENTS DOES NOT AND WILL NOT CREATE ANY WARRANTY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.

YOU AGREE THAT IN NO EVENT WILL COMPANY BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (II) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. The foregoing disclaimer of liability will not apply to the extent prohibited by applicable law.

IF FOR ANY REASON THE DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 IS/ARE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN COMPANY'S MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES HEREUNDER SHALL BE LIMITED TO $1,000.

You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that Company would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".

  1. INDEMNIFICATION

You agree to indemnify and defend Company and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys' fees brought against Company by any third party arising from your use of the Services or any violation of these Terms, the rights of a third party or applicable law. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. No settlement that affects the rights or obligations of Company may be made without Company's prior written approval.

  1. DISPUTE RESOLUTION

These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Delaware without giving effect to the principles of conflicts of laws of such state and are binding upon the parties hereto in the United States and worldwide. You and Company agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.

YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

YOU AND COMPANY AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION 11 AND THAT YOU AND COMPANY WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

Any dispute between you and Company and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates arising from or relating to these Terms and its interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of these Terms to arbitration (collectively, "Covered Disputes") will be settled by binding arbitration in the State of Delaware administered by the American Arbitration Association (AAA) in accordance with its rules (including its rules and procedures for consumer-related disputes) in effect on the date thereof. Prior to initiating any arbitration, the initiating party will give the other party at least 60 days' advanced written notice of its intent to file for arbitration. Company will provide such notice by email to the email address that you provided when you created your account and you must provide such notice to Company by email at compliance@avadynehealth.com.

Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, Company will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Company for all fees associated with the arbitration that Company paid on your behalf which you otherwise would be obligated to pay under the AAA's rules.

A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator's decision must be with written explanation and remain confidential. Company and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. If any provision of the agreement to arbitrate in this Section 11 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration).  Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 11, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).

Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against Company under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any disputes is in the United States according to the terms of this Section 11.

  1. REFUND POLICY

The Company will refund or reverse any payment that was processed in error. After a determination is made that a refund or reversal is due, it may take up to 10 days to process a refund or reversal.

  1. ELECTRONIC CONTRACTING

Your affirmative act of using and/or registering for the Services constitutes your electronic signature to these Terms, which includes our Privacy Policy and your consent to enter into agreements with us electronically.

  1. GEOGRAPHIC RESTRICTIONS

The Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.

The Services may be subject to U.S. export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the U.S.

  1. US GOVERNMENT RIGHTS

The Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor thereof, you receive only those rights with respect to the Services as are granted to all other users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

  1. TERM AND TERMINATION

These Terms remain in full force and effect while you use the Services.  These Terms automatically terminate when you fail to comply with any term or condition of them. Company may terminate, modify or suspend your access to any or all of the Services, with or without notice to you, at any time for any reason. For example, access to the Services may be denied without notice if Company believes that you are a minor.

We are not required to disclose (and may be prohibited by law from disclosing) the reason for the termination or suspension of your use of the App.

Termination will not limit any of Company's other rights or remedies. Sections 4, 9, 10, 11 and 17, as well as any other provision that must survive in order to give proper effect to the intent and purpose of these Terms, shall survive termination.

  1. CLAIMS OF COPYRIGHT INFRINGEMENT

We respond to notices of alleged infringement as required by the U.S. Digital Millennium Copyright Act ("DMCA"), including by removing or disabling access to material claimed to be the subject of infringing activity.  If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights otherwise have been violated in or through the Services, please send your claim or notice of infringement to:

Avadyne Health

Attn: Compliance Director

5320 22nd Avenue

Moline, IL 61265

Our DMCA Agent will only respond to notices and inquiries that comply with the requirements of the DMCA. Please see www.copyright.gov for more information.

  1. MISCELLANEOUS

  1. These Terms (including our Privacy Policy) contain the entire understanding by and among Company and you with respect to the matters contained herein.
  2. These Terms inure to the benefit of and will be binding upon Company's and your successors and assigns, respectively.
  3. These Terms may be assigned by Company but you may not assign the Terms without the prior express written consent of Company.
  4. For purposes of Sections 5, 6, 7, 8, 9, 10, and 11 above and the Privacy Policy, "Company” includes its third-party providers.
  5. If any provision of these Terms is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been used.
  6. If Company fails or you fail to perform any obligation under these Terms and the other party does not enforce such obligation, the failure to enforce on any occasion will not constitute a waiver of any obligation and will not prevent enforcement on any other occasion.
  7. Nothing contained in these Terms will be deemed to constitute Company or you as the agent or representative of the other or as joint ventures or partners.
  8. If Company is or you are prevented from performing or unable to perform any obligation under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance will be extended for the period of delay or inability to perform due to such cause.
  9. Headings and captions are for convenience only.

QUESTIONS?

If you have any questions about these Terms or the Services, please contact us at:

Avadyne Health

Attn: Compliance Director

5320 22nd Avenue

Moline, IL 61265