Zotec Partners, LLC Terms Of Use (2023)

ZOTEC PARTNERS, LLC

TERMS OF USE

PLEASE READ THESEZOTEC PARTNERS, LLC (“Zotec”) TERMS OF USE (“Agreement” or “Terms of Use”) CAREFULLYBEFORE SELECTING THE “I accept the terms in the Zotec Partners Terms of Use”OPTION BELOW.

BY SELECTING THE“I Accept” OPTION BELOW, THE PERSON ACCEPTING THIS AGREEMENT (“Licensee”) ISCONFIRMING LICENSEE’S AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT,INCLUDING BUT NOT LIMITED TO THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITYAND TERMINATION PROVISIONS BELOW. IF LICENSEE IS REPRESENTING A CORPORATION,LLC, PARTNERSHIP, OR OTHER NON-INDIVIDUAL ENTITY, THE PERSON ACCEPTING THISAGREEMENT ON BEHALF OF THAT ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE ALLNECESSARY AUTHORITY TO BIND THAT ENTITY AND FURTHER AGREE TO PERSONALLY BEBOUND TO OBSERVE THIS AGREEMENT AS A REPRESENTATIVE OF THAT ENTITY. IF LICENSEEDOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE “Cancel” OPTIONBELOW. IF LICENSEE DOES NOT AGREE TO THESE TERMS OF USE, LICENSEE MAY NOTACCESS THE SOFTWARE.

BACKGROUND

WHEREAS, Licenseeand Zotec have either entered into a services agreement or Licensee is anemployee of Zotec or of a non-individual Licensee subject to a servicesagreement; and

WHEREAS, Licenseedesires to access one or more Zotec Partners software and/or web applications (“Software”),which may contain medical, billing, financial, software, development, process,and other information relating to Zotec and/or Zotec clients, including but notlimited to patient data, claims, contact information, product, processes,software code, software routines, research, development, concepts, ideas,designs, products under development, prototypes, specifications, test data,proposed pricing, marketing strategies, and the documentation thereof(collectively, the “Data”), and Zotec desires to provide Licensee with accessto Software.

NOW, THEREFORE,in consideration of the mutual promises herein contained, the contractual oremployment relationship of the parties, and other good and valuableconsideration, the receipt and sufficiency of which are hereby mutuallyacknowledged, the parties hereto covenant and agree as follows:

1.LicenseGrant and Termination

Subject tothe terms and conditions of this Agreement, Zotec hereby grants to Licensee alimited, non-transferable, non-exclusive and revocable license to access anduse Software, in accordance with this Agreement, as made available to Licenseeby Zotec. This Agreement shall terminate immediately and automatically upon thetermination of the applicable services agreement or employment relationship.Zotec may also terminate this Agreement at any time upon ten (10) days noticeto Licensee, which notice may be given by written notice or posting notice ofunavailability of Software on the Software web application.

Zotec reserves the right to amend or discontinue Software and any serviceor material Zotec provides in Software at its sole discretion at any time withoutnotice. Zotec shall not be liable to Licensee if for any reason all or any partof Software is unavailable at any time or for any period or discontinued. Fromtime to time, Zotec may restrict access to some or all parts of Software tousers, including registered users.

2.Ownershipand Intellectual Property

ThisAgreement does not grant to Licensee any ownership interest in Software.Rather, Licensee has a license to access and use Software solely as provided inthis Agreement. Licensee hereby agrees and acknowledges that Zotec owns allright, title, and interest in Software and Licensee will not contest thoserights or engage in any conduct contrary to those rights. Licensee herebygrants Zotec a royalty-free, worldwide, transferable, sub- licensable,irrevocable, perpetual license to use or incorporate into Software or any ofZotec’s other services any suggestions, enhancement requests, recommendationsor other feedback provided by Licensee, including Authorized Users andAdministrators.

3.PermittedUse and Restrictions

“AuthorizedUser(s)” means any person(s) designated by Licensee to access and use Softwaresolely pursuant to the applicable services agreement or employment agreement andsolely subject to the terms of this Agreement and in accordance with allapplicable laws. Licensee will designate at least one Authorized User forpurposes of administering the access of all Authorized Users to Software(“Administrator(s)”).

Licenseeagrees that it is solely responsible for: (i) the request and approval ofissuance, activation, security and use of log-on names and passwords associatedwith Licensee’s and its Authorized Users’ and Administrators’ access of Software(“Log-on Information”); (ii) ensuring that each Authorized User andAdministrator will not disclose such Log-on Information to any other person orentity; (iii) ensuring that each Authorized User and Administrator will notpermit any other person or entity to use his/her Log-on Information; (iv)ensuring that each Authorized User and Administrator will use Software and/orData consistent with such Authorized User’s or Administrator’s authorizedbusiness responsibilities as established and determined by Licensee; and (v)ensuring that each Authorized User and Administrator will use Software and/orData in accordance with the terms and conditions of this Agreement.

Licenseeagrees that it is solely responsible for the request and approval toimmediately deactivate the Log-on Information for any Administrator and anyAuthorized User that is no longer authorized to access Software (due totermination, change of position, end of assignment or otherwise).

Licenseeagrees that it is solely responsible for: (i) advising each Administrator andeach Authorized User of his/her obligations under this Agreement and of thelicense restrictions set forth in this Agreement; and (ii) any and all damages,costs and expenses caused by or in any way arising from any use of any Log-onInformation (whether authorized or unauthorized) and any use of Software byAuthorized Users, Administrators and anyone accessing Software using Log-on Informationissued by or for Licensee. Licensee is further responsible for keeping currentwith all operating system and security updates as prompted and/or released byany and all devices used to access Software.

Licenseeagrees that it will notify Zotec immediately if Licensee believes the securityof any Log-on information or the Software web application has been compromisedin any way (contact Zotec Partners Privacy Officer at (317) 805-4108 or privacy@zotecpartners.com ).

Licenseeexpressly agrees that it will not: (i) use Software in manner other than aspermitted by this Agreement; (ii) provide access to Software to any thirdparty; (iii) reverse engineer Software or assist another in the same; (iv)interfere, or attempt to interfere, with Software in any way; (v) engage in anyfraudulent, illegal or unauthorized use of Software.

Zotec willdetermine Licensee’s compliance with the terms of this Agreement at its solediscretion and its decision shall be final and binding. Any violation of theterms of this Agreement may result in restrictions on Licensee’s access to anduse of all or part of Software and may be referred to law enforcementauthorities.

Licenseeagrees that Zotec may suspend Licensee’s access to and use of Software as aresult of: (i) any untimely payment of any amounts due by Licensee to Zotecunder this Agreement, the Primary Agreement or any other agreement entered intoby and between Licensee and Zotec; (ii) Licensee’s breach of the terms of thisAgreement; (iii) there is a threat or attack on Software or other event thatmay create a risk to Software, Zotec or any of Zotec’s customers; or (iv)Licensee’s or its Authorized Users’ use of Software disrupts or poses asecurity risk to Software or any of Zotec’s customers, may harm Zotec’s systemsor those systems of any of Zotec’s customers, or may subject Zotec or any thirdparty to liability.

4.ProhibitedUses

Licensee may use Software only for lawful purposes and in accordance withthis Agreement. Licensee agrees not to use Software:

·To send,knowingly receive, upload, download, use, or re-use any material which does notcomply with this Agreement.

·To transmit, orprocure the sending of, any advertising or promotional material.

·To impersonate orattempt to impersonate Zotec, another user, or any other person or entity(including, without limitation, by using e-mail addresses or usernamesassociated with any of the foregoing).

·To engage in anyother conduct that restricts or inhibits anyone's use or enjoyment of Software,or which, as determined by Zotec, may harm Zotec or users of Software or exposeZotec to liability.

Additionally, Licensee agrees notto:

·Use Software inany manner that could disable, overburden, damage, or impair the Software orinterfere with any other party's use of Software, including their ability toengage in real-time activities through Software.

·Use any robot,spider, or other automatic device, process, or means to access Software for anypurpose, including monitoring or copying any of the material in Software.

·Use any manualprocess to monitor or copy any of the material in Software or for any otherunauthorized purpose without Zotec’s prior written consent.

·Use any device,software, or routine that interferes with the proper working of Software.

·Introduce anyviruses, trojan horses, worms, logic bombs, or other material which ismalicious or technologically harmful.

·Attempt to gainunauthorized access to, interfere with, damage, or disrupt any parts of Software,the server(s) on which Software is stored, or any server, computer, or databaseconnected to Software.

·Attack Softwarevia a denial-of-service attack or a distributed denial-of-service attack.

·Otherwise attemptto interfere with the proper working of Software.

5.ConfidentialInformation

Licenseeacknowledges the proprietary and confidential nature of the contents, features,and functionality (including but not limited to all information, software,text, displays, images, video and audio and the design, selection andarrangement) of Software and its Data and any and all of Zotec informationprovided to Licensee through Software, including but not limited to Zotec’strade secrets, intellectual property and proprietary rights, business andfinancial information, technical information, processes and the terms of thisAgreement (collectively, the “Confidential Information”).

Licenseeagrees not to: (i) use Confidential Information for any purpose other than useof Software pursuant to this Agreement, and (ii) disclose Zotec’s ConfidentialInformation to any third party without Zotec’s prior written consent. At aminimum, Licensee agrees to limit access to Zotec’s Confidential Information tothose advisors, attorneys, contractors, consultants and employees having a needto know Zotec’s Confidential Information for that party either to exercise itsrights or fulfill its obligations, as applicable, under this Agreement or anyapplicable services agremeent.

These Terms of Use permit Licensee to use Software for Licensee’s professionaluse only in accordance with the applicable agreements. Licensee must notreproduce, distribute, modify, create derivative works of, publicly display,publicly perform, republish, download, store or transmit any of the material inSoftware, except as follows:

·Licensee’s computermay temporarily store copies of such materials in RAM incidental to Licensee’s accessingand viewing those materials.

·Licensee maystore files that are automatically cached by Licensee’s Web browser for displayenhancement purposes.

Licensee mustnot:

·Modify copies ofany materials from the Software.

·Delete or alterany copyright, trademark, or other proprietary rights notices from copies ofmaterials from this site.

·Licensee must notaccess or use for any personal purposes any part of Software or any services ormaterials available through Software.

If Licensee prints, copies, modifies, downloads or otherwise uses orprovides any other person with access to any part of Software in breach ofthese Terms of Use, Licensee’s right to use Software will cease immediately andLicensee must, at Zotec’s option, return or destroy any copies of the materialsLicensee have made. No right, title, or interest in or to Software or anycontent in Software is transferred to Licensee, and all rights not expresslygranted are reserved by Zotec. Any use of Software not expressly permitted bythese Terms of Use is a breach of these Terms of Use and may violate copyright,trademark, and other laws.

To access Software,Licensee will be asked to provide certain registration details or otherinformation. It is a condition of Licensee’s use of Software that all theinformation Licensee provide is correct, current, and complete.

If Licensee chooses or is provided with a username, password, or anyother piece of information as part of Zotec’s security procedures, Licensee musttreat such information as confidential, and Licensee must not disclose it toany other person or entity. Licensee also agrees not to provide any otherperson with access to Software or portions of it using Licensee’s username,password, or other security information. Licensee agrees to notify Zotecimmediately of any unauthorized access to or use of Licensee’s username orpassword or any other breach of security by contacting the Zotec PartnersPrivacy Officer at (317) 805-4108 or privacy@zotecpartners.com. Licensee also agrees to ensure that Licensee exits from Licensee’s accountat the end of each session. Licensee should use particular caution whenaccessing Licensee’s account from a public or shared computer so that othersare not able to view or record Licensee’s password or other personalinformation. Zotec has the right to disable any username, password or otheridentifier, whether chosen by Licensee or provided by Zotec, at any time if, inZotec’s opinion, Licensee has violated any provision of these Terms of Use.

6.Trademarks

The Zotec name, the Zotec logo, andall related names, logos, product and service names, designs, and slogans aretrademarks of Zotec or its affiliates or licensors. Licensee must not use suchmarks without the prior written permission of Zotec. All other names, logos,products and services names, designs, and slogans in Software are thetrademarks and/or registered marks of their respective owners.

7.Complianceand Accuracy of Information

Licenseeacknowledges and agrees that: (i) any and all information Licensee provides,transmits and/or transfers to Zotec, through Software or by other means, thatmay reasonably be understood to be used by Zotec in connection with Softwarewill be accurate and will comply with all applicable federal, state, and locallaws, including without limitation the Health Insurance Portability andAccountability Act (“HIPAA”) and the Health Information Technology for Economicand Clinical Health Act (“HITECH”); and (ii) Licensee is solely responsible forthe accuracy of such information and compliance with such laws with regard tothe storage, transmittal and provision of such information. Licensee representsand warrants that it has all rights and authorizations necessary to provide,transmit and/or transfer any such data that Licensee provides to Zotec.

8.Monitoringand Enforcement; Termination

Zotec has theright to:

·Remove or refuseto post any messages, content, or other materials (“User Contributions”) forany or no reason in Zotec’s sole discretion.

·Take any actionwith respect to any User Contribution that Zotec deems necessary or appropriatein Zotec’s sole discretion, including if Zotec believes that such UserContribution violates the Terms of Use, including the Content Standards,infringes any intellectual property right or other right of any person orentity, threatens the personal safety of users of Software or the public, orcould create liability for Zotec.

·Disclose Licensee’sidentity or other information about Licensee to any third party who claims thatmaterial posted by Licensee violates their rights, including their intellectualproperty rights or their right to privacy.

·Take appropriatelegal action, including without limitation, referral to law enforcement, forany illegal or unauthorized use of Software.

·Terminate orsuspend Licensee’s access to all or part of Software for any violation of theseTerms of Use.

Without limiting the foregoing, Zotec has the right to fully cooperatewith any law enforcement authorities or court order requesting or directing usto disclose the identity or other information of anyone posting any materialsin or through Software. LICENSEE WAIVES AND HOLDS HARMLESS ZOTEC AND ITSAFFILIATES, OTHER LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTINGFROM ANY ACTION TAKEN BY ZOTEC OR ANY OF THE FOREGOING PARTIES DURING OR AS ARESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OFINVESTIGATIONS BY EITHER ZOTEC, SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.

However, Zotec cannot review material before it is posted in Software,and Zotec cannot ensure prompt removal of objectionable material after it hasbeen posted. Accordingly, Zotec assumes no liability for any action or inactionregarding transmissions, communications, or content provided by any user orthird party. Zotec has no liability or responsibility to anyone for performanceor nonperformance of the activities described in this section.

These content standards apply to any and all User Contributions and useof Interactive Services. User Contributions must in their entirety comply withall applicable federal, state, local, and international laws and regulations.Without limiting the foregoing, User Contributions must not:

·Contain anymaterial which is defamatory, obscene, indecent, abusive, offensive, harassing,violent, hateful, inflammatory, or otherwise objectionable.

·Promote sexuallyexplicit or pornographic material, violence, or discrimination based on race,sex, religion, nationality, disability, sexual orientation, or age.

·Infringe anypatent, trademark, trade secret, copyright, or other intellectual property orother rights of any other person.

·Violate the legalrights (including the rights of publicity and privacy) of others or contain anymaterial that could give rise to any civil or criminal liability underapplicable laws or regulations or that otherwise may be in conflict with theseTerms of Use.

·Be likely todeceive any person.

·Promote anyillegal activity, or advocate, promote, or assist any unlawful act.

·Impersonate anyperson or misrepresent Licensee’s identity or affiliation with any person ororganization.

·Involvecommercial activities or sales, such as contests, sweepstakes, and other salespromotions, barter or advertising.

·Give theimpression that User Contributions emanate from or are endorsed by Zotec or anyother person or entity, if this is not the case.

The information presented in or through Software is made available solelyfor general information purposes. Zotec does not warrant the accuracy,completeness, or usefulness of this information. Any reliance Licensee place onsuch information is strictly at Licensee’s own risk. Zotec disclaims allliability and responsibility arising from any reliance placed on such materialsby Licensee or any other visitor to Software, or by anyone who may be informedof any of its contents.

If Software containslinks to other sites and resources provided by third parties, these links areprovided for Licensee’s convenience only. Zotec has no control over thecontents of those sites or resources and accept no responsibility for them orfor any loss or damage that may arise from Licensee’s use of them. If Licenseedecides to access any of the third-party websites linked to Software, Licenseedoes so entirely at Licensee’s own risk and subject to the terms and conditionsof use for such websites.

13.Indemnification

Licensee agreesto indemnify, defend and hold harmless Zotec, its affiliates, and each of theirofficers, directors, employees, agents, suppliers, licensors, third partypartners, successors and assigns from and against all claims, losses, expenses,third party claims, damages and costs, including, without limitation,attorneys’ fees, arising from or relating to: (i) any breach by Licensee of theterms of this Agreement; (ii) any content, data or other information providedby Licensee to Zotec, through Software or by other means, that may reasonablybe understood to be used by Zotec in connection with Software, including butnot limited to any failure by Licensee to comply with HIPAA and HITECH; (iii)Licensee’s access, use or misuse of Software; (iv) Licensee’s failure to complywith any and all applicable laws, orders, codes and regulations, including,without limitation all privacy laws, in Licensee’s use of Software; and (v) anyaccess to Software using Licensee’s Log-on Information.

14. Warranty Disclaimer and Limitation ofLiability

LICENSEE AGREESTHAT SOFTWARE, INCLUDING ALL CONTENT AND DATA ON AND SERVICES OFFERED INCONNECTION WITH SOFTWARD ARE PROVIDED ON AN "AS IS" BASIS WITH NOWARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZOTEC DISCLAIMSALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SOFTWARE,INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OROTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, AND IMPLIED WARRANTIESARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ZOTEC DOES NOTREPRESENT OR WARRANT THAT SOFTWARE WILL BE AVAILABLE FOR ANY SPECIFIED TIME OFDAY OR DURATION.

AS A CONDITIONOF LICENSEE’S USE OF SOFTWARE, LICENSEE WARRANTS TO ZOTEC THAT LICENSEE WILLNOT USE SOFTWARE FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THE TERMS OFTHIS AGREEMENT, THE PRIMARY AGREEMENT, THE BAA OR ANY OTHER AGREEMENT ENTEREDINTO BY AND BETWEEN LICENSEE AND ZOTEC. LICENSEE AGREES THAT IT WILL MAKE NOCLAIM AGAINST ZOTEC FOR LOST DATA, INACCURATE OUTPUT, WORK DELAYS OR LOSTPROFITS RESULTING FROM ACCESS OR USE OF Software. LICENSEE AGREES THAT ZOTECWILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARYOR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT ZOTEC HASBEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN ANACTION UNDER CONTRACT, TORT, OR ANY OTHER THEORY, ARISING OUT OF OR INCONNECTION WITH ANY ERRORS OR OMISSIONS, VIRUSES OR OTHER MALICIOUS ORUNAUTHORIZED CODE OR PROGRAMS, THE USE, INABILITY TO USE, OR PERFORMANCE OF SOFTWAREOR THE DATA, CONTENT OR SERVICES AVAILABLE FROM SOFTWARE OR ANY LOSS, PERSONALINJURY, PROPERTY DAMAGE, BUSINESS INTERRUPTION OR OTHER DAMAGES IN CONNECTIONTHEREWITH.

WITHOUT LIMITINGTHE FOREGOING, ZOTEC’S LIABILITY IN CONNECTION WITH SOFTWARE, DATA, THESERVICES OR THE TERMS OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BYLICENSEE FOR THE LICENSE TO ACCESS AND USE Software UNDER THIS AGREEMENT. THESELIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANYLIMITED REMEDY.

ANY CAUSE OFACTION OR CLAIM LICENSEE MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OFUSE OR SOFTWARE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTIONACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

15.ForceMajeure

Either partyshall be excused from any delay or failure in performance hereunder to theextent caused by reason of any occurrence or contingency beyond its reasonablecontrol, including but not limited to acts of God, earthquake, third-partylabor disputes and strikes, riots, war and governmental requirements. Theobligations and rights of the party so excused shall be extended on aday-to-day basis for the period of time equal to that of the underlying causeof the delay.

16.Miscellaneous

If any part ofthis Agreement is determined to be invalid or unenforceable pursuant toapplicable law including, but not limited to, the warranty disclaimers andliability limitations set forth above, then the invalid or unenforceableprovision will be deemed superseded by a valid, enforceable provision that mostclosely matches the intent of the original provision and the remainder of theterms of this Agreement shall continue in effect. Licensees agree that no jointventure, partnership, employment, or agency relationship exists betweenLicensee and Zotec as a result of this Agreement or Licensee’s access or use ofSoftware. Zotec’s performance of the terms of this Agreement is subject toexisting laws and legal process, and nothing contained in these terms is inderogation of Zotec’s right to comply with law enforcement requests orrequirements relating to Licensee’s access and use of Software or informationprovided to or gathered by Zotec with respect to Software. A printed version ofthis Agreement and of any notice relating thereto given in electronic formshall be admissible in judicial, arbitration or administrative proceedingsbased upon or relating to the terms of this Agreement to the same extent andsubject to the same conditions as other business documents and recordsoriginally generated and maintained in printed form. This Agreement shall begoverned by and construed in accordance with the substantive laws of the Stateof Indiana, without regard to conflict of law principles. In any litigation orarbitration related to this Agreement, the prevailing party will be entitled torecover (from the other party) the prevailing party’s reasonable attorney'sfees, court costs, and expert witness fees. Without limiting the foregoing, anyprovision that by its nature is intended to survive expiration or terminationof this Agreement shall survive expiration or termination of this Agreement,including but not limited to the confidentiality provisions in Section 4, theindemnification obligations in Section 6 and the disclaimer of warranties andlimitation of liability in Section 7.

Effective Date: September 30, 2021