Effective as of September 10, 2010

Updated as of January 1, 2017

IMPORTANT – PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES (DEFINED BELOW), AS USE OF THE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW.

Welcome to Pathfinder Health Innovations! The www.abpathfinder.com, www.pathfinderhi.com, and www.ensurebilling.com websites, the abpathfinder.net web application, the pathfinderhi.net web application, the Ensure Billing web application, any mobile application, any derivative website or application on which this Agreement is posted (collectively, the “Site”) are owned and operated by Pathfinder Health Innovations, Inc., a Delaware corporation (“Pathfinder,” “us,” “our,” “we”). This Terms of Use and Subscription Agreement (“Agreement”) govern your use of the Site and any Content (defined below), Widgets (defined below), or other products or services that are offered or provided through our Site or application(s) (collectively, the “Services”). If you purport to be the agent of, represent, or otherwise act on behalf of an entity or any other person, references to “you” or “your” shall include such entity or person in addition to you, and your acceptance of this Agreement shall constitute acceptance on behalf of such entity or person. You should carefully read this Agreement before agreeing to it because it may affect your rights.

We may change, modify, add, or remove portions of this Agreement at any time by posting changes to this page. If you have previously registered an account, we will attempt to notify you of any changes at the email address you provided to us, but are not obligated to do so. You understand that you have the affirmative obligation to check this Agreement for changes from time to time, and you agree to periodically review this Agreement for such changes. The continued use of the Services following the posting of changes to this Agreement will constitute your acceptance of these changes. The most current version of this Agreement can be reviewed at www.pathfinderhi.com/terms.

As used in this Agreement, references to “post” or “posting” shall refer to any manner of posting, transmitting, uploading, providing, making available, storing or otherwise transferring any Content, material, or information.

BY USING OR ACCESSING THE SERVICES, CREATING, REGISTERING, OR ACCESSING AN ACCOUNT, POSTING OR DOWNLOADING CONTENT, WIDGETS, OR OTHER INFORMATION, PURCHASING ANY PRODUCTS OR SERVICES VIA THE SITE, OR MANIFESTING YOUR ASSENT TO THIS AGREEMENT IN ANY OTHER MANNER, YOU IRREVOCABLY AND EXPRESSLY AGREE TO, AND SHALL BE LEGALLY BOUND BY, THIS AGREEMENT, OUR PRIVACY POLICY, AND OUR COPYRIGHT POLICY. IF YOU DO NOT UNEQUIVOCALLY AGREE TO THIS AGREEMENT, YOU MAY NOT USE OR OTHERWISE ACCESS THE SITE OR ANY OF THE SERVICES AND MAY NOT CREATE, REGISTER, OR ACCESS AN ACCOUNT, POST OR DOWNLOAD CONTENT, WIDGETS, OR ANY OTHER INFORMATION FROM THE SITE, OR PURCHASE ANY PRODUCTS OR SERVICES THROUGH THE SITE.

  1. General Terms of Use

(a) Grant of License. Subject to the terms and conditions of this Agreement and any applicable pricing schedule, Pathfinder grants you a limited, nonexclusive, nonassignable, nontransferable license to access and use the Services. This license is limited to the identified number of authorized accounts, for your noncommercial, personal use or, if applicable, the internal business needs of the entity you represent, subject to your agreement to and compliance with this Agreement. We reserve all rights not expressly granted in this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement, limit your access to the Services (or any part thereof), and restrict your ability to post or download Content, Widgets, or other products or services.

(b) Restrictions You agree not to reproduce, duplicate, copy, distribute, transmit, sell, trade, resell, or exploit for any purpose any portion of or any information contained in the Services (or any part thereof). You may not obscure or remove any proprietary rights notices contained in or on the Content.

(c) Compatibility and System Requirements.You are solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical, and other system requirements necessary for your access to and use of the Services (or any part thereof).

(d) Changes to the Services. We may discontinue or alter any aspect of the Services and Subscriptions (defined below), remove Content from the Site or Services, disable Widgets, restrict the time the Services are available, or restrict the amount of use of the Services at our discretion and without prior notice or liability to you.

(e) Removal of Access. You agree that we may immediately suspend or terminate your access and use of the Services (or any part thereof) in our sole discretion and without liability to you or any other person or entity for any reason, including, but not limited to:

(1) Your or a User’s breach or violation of this Agreement or any other incorporated agreements or guidelines (including our Privacy Policy and Copyright Policy);

(2) Discontinuance or material modification of the Services (or any part thereof);

(3) Unexpected technical or security issues or problems;

(4) Extended periods of inactivity; and

(5) Your fraudulent or illegal activity.

  1. Your Obligations

(a) Your Responsibilities. You shall have the sole responsibility for:

(1) Acquiring, installing, and maintaining the technology environment and equipment necessary to properly access, operate, and utilize the Services, including, without limitation, PCs, tablets and/or electronic devices, operating systems, servers, Internet access, LANs, and WANs, for any communications or other costs incurred, and for any expenses relating to the foregoing;

(2) Determining the suitability of the Services for your operations and whether the Services will achieve the results you desire;

(3) Selecting and training adequate personnel with the requisite experience necessary to operate your systems and who are familiar with your records associated with the Services;

(4) Establishing adequate operational back-up systems and procedures to ensure recovery and continuity of systems and operations in the event of a failure;

(5) Ensuring the accuracy of any User Content (defined below) input into the Services, ensuring and confirming the accuracy of such User Content, associated Content, or any other data or results generated, created, or output by the Services prior to use, and undertaking procedures to test, identify, and correct any errors or omissions relating to the foregoing; and

(6)Limiting use of and access to the Services solely to those users whose duties require such use and access and shall undertake best efforts to ensure that our confidential information and the Intellectual Property Rights (defined below) are kept secure.

(b) Users. You acknowledge and agree that you are responsible for all acts, activities and omissions of anyone accessing and using the Site and Services through your account, subscription or otherwise (“User”), including, without limitation, the posting of User Content. You are solely responsible for ensuring compliance of all of your Users with the terms and conditions of this Agreement.

(c) No Direct Competitors. You may not use the Services if you are a direct competitor of Pathfinder, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.

(d) Audits. Pathfinder may conduct audits to ensure that you and your Users (defined below) are in compliance with this Agreement. Such audits may be conducted through remote monitoring by Pathfinder of your use of and access to the Services (or any portion thereof). If an audit reveals that your use of the Services during the period being audited exceeds the scope of your licensed use pursuant to this Agreement or an applicable pricing schedule, then Pathfinder may invoice you for all such excess use based on Pathfinder’s prevailing rates in effect at the time the audit is completed. If such excess use exceeds 10% of the licensed use, you shall also pay Pathfinder’s reasonable costs of conducting the audit.

  1. Not for Children’s Use

The Services are not intended for use by children. You must be at least 18 years old to be eligible to use the Services. If you are not, but are between the ages of 13 and 17, you may only use the Services if your parents or legal guardians give you permission to use the Services. If you are under the age of 13, you may not use the Services. By using the Services, you represent that you are at least 18 years old or, if you are between the ages of 13 and 17, that you have obtained your parent’s or legal guardian’s consent to use the Services.

  1. Privacy Policy

We collect, store, and use data that we collect from you in accordance with our Privacy Policy, located at www.pathfinderhi.com/privacy-policy. The terms and conditions of such Privacy Policy are hereby incorporated into this Agreement.

  1. Accounts

(a) Registration. Access to certain Services may require your organization to be registered with Pathfinder via a Pathfinder-generated registration form. This form will require that your organization provide certain requested information (including personal information and financial information required to enact any Subscriptions). At such time, your organization will be provided with an account and login information including a username and password to successfully complete the registration process. You shall not permit anyone outside your organization to access the account. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password.

(b) Additional Accounts. You may create additional associated accounts for Users within your organization; however, you agree you are responsible for ensuring all Users comply with the terms of this Agreement.

(c) Unauthorized Use and Information Changes. You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are solely responsible for any unauthorized use of the Site or Services in connection with your account. You also agree that you will provide truthful and accurate information during the registration process, including the anticipated number of client accounts under your organization’s account. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.

  1. Intellectual Property Rights

(a) Intellectual Property Rights Defined. Intellectual Property Rights” shall mean all intellectual property rights associated with or relating to the Services (or any portion thereof), including, without limitation, all Content, software, source code, designs, formulas, procedures, methods, apparatus, ideas, inventions, creations, improvements, modifications, derivative works, works of authorship, or other similar materials; copyrights, patents, trade secrets, trademarks, service marks, trade names, and other proprietary rights relating thereto; and any associated goodwill, on a worldwide basis.

(b) Content Ownership. Pathfinder reserves all Intellectual Property Rights existing in any Content included in, obtained on, or provided by the Services. Nothing herein shall be construed as conferring by implication, estoppel, or otherwise, any license or right under any Intellectual Property Rights of Pathfinder or third parties. Unless otherwise provided herein, Content may not be copied, reproduced, republished, uploaded, downloaded, posted, transmitted, or distributed in any way without the prior written permission of Pathfinder, except that, subject to your compliance with this Agreement, Pathfinder authorizes you to view Content to which you have access through registration or Subscription(s).

(c) Intellectual Property Ownership. As between the parties, you acknowledge that Pathfinder claims and reserves all rights and benefits afforded under federal and international copyright or other law relating to Intellectual Property Rights in the Services (or any part thereof) furnished to you (including, without limitation, any modifications, additions, or derivative works based on the Services (or any portion thereof)). This Agreement does not affect any transfer of title or other interest in or to the Services (or any portion thereof) or any other products, information, or materials, and you hereby expressly disclaim any such interest therein. We shall remain entitled to enforce our rights and other interests in the Services (or any part thereof) and any other products, information, and materials produced or disclosed in connection therewith. You shall use your best efforts to ensure that all permitted Users afforded access to the Services, beta Services, Content, and any other products, information, and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination or disclosure. All rights not specifically granted to you hereunder are reserved by Pathfinder. Nothing herein shall prevent Pathfinder, our affiliates, or licensors from promoting, providing, licensing or sublicensing use of or access to the Services, or any portion or component thereof, to any third party.

  1. Content

(a) Content Defined. The Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any Content are valid and protected in all forms, media, and technologies existing now or developed in the future. For purposes of clarification, references to Content includes User Content.

(b) User Content Defined. User Content” means any data you post via the Services, excluding Feedback (defined below).

(c) License to User Content. User Content is your intellectual property. We do not claim ownership rights in such User Content. However, by posting User Content via the Services, you hereby grant us a limited, transferable, nonexclusive, worldwide, perpetual, irrevocable, royalty-free right and license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works and compilations incorporating such User Content.

(d) Monitoring User Content. We may monitor or remove User Content except under certain limited circumstances or as required or permitted by law or otherwise in our sole discretion.

(e) Removal of User Content.

(1) If you would like us to remove your User Content from the Services, please contact us at info@pathfinderhi.com.

(2) Even if we agree to remove your User Content, it may not be completely removed or may be otherwise accessible to others in the following circumstances:

(A) Your User Content has been incorporated into derivative works or compilations created by us or third parties;
(B) Your User Content has been retained in our data backup systems or for archival purposes;
(C) To the extent your User Content has been provided to or downloaded by other persons and such persons retain your User Content; and
(D) To the extent we are required by law (including HIPAA requirements) to retain such User Content.

(f) Feedback. Any comments, feedback, information, or materials regarding the Services (collectively, “Feedback”) that you submit to us shall become Pathfinder’s property. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to Pathfinder, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. Pathfinder shall be free to use your Feedback on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights that you may have in or to the Feedback.

(g) Protected Health Information. You may desire to use the Services for the collection and storage of confidential patient information or protected health information (“Patient Information”). State and federal laws, policies, procedures, and guidelines of any applicable health care facility, and ethical and licensure requirements of your profession may impose obligations with respect to patient confidentiality that may limit the ability of physicians, health care providers, and persons acting on their behalf, to make use of certain Content, or to transmit certain information to third parties. You represent and warrant that you will, at all times during the term of this Agreement and thereafter, comply with all laws directly or indirectly applicable to you that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Patient Information, and use your best efforts to cause all persons or entities under your direction or control to comply with such laws. You are, at all times during the term of this Agreement and thereafter, solely responsible for obtaining and maintaining all patient and/or parental consents, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Patient Information you transmit, store, or receive in connection with the Services (or any part thereof) and any third party website. You agree that Pathfinder, Pathfinder’s licensors and licensees, and all other persons or entities involved in the operation of the Services (or any part thereof), have the right to monitor, retrieve, store, review, and use Patient Information, if applicable, in connection with the operation or use of the Services (or any part thereof) provided via the Site, and are acting on your behalf in transmitting Patient Information.

(h) No Responsibility. Pathfinder cannot and does not assume any responsibility for your use or misuse of User Content, Content or patient information or other information transmitted, monitored, stored, or received while using the Services (or any portion thereof). We reserve the right to amend or delete any content (along with the right to terminate or restrict use of or access to the Services) that in our sole discretion violates any of the above. By post User Content via the Services, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such User Content. You agree that Pathfinder is not liable for any legal violation caused by your use or misuse of User Content, Content, or patient information or other information transmitted, monitored, stored, or received while using the Services (or any portion thereof).

  1. Widgets

Please be aware that we may deliver Content via the Site provided by third parties or allow third parties to post widgets to the Site that deliver Content (“Widgets”). These Widgets are controlled by third party content providers (“Widget Providers”). We do not endorse and are not responsible or liable for any Content, advertising, products, or other materials on or available through such Widgets. The use of these Widgets, as well as the privacy practices of the Widget Providers, are governed by the applicable Widget Providers’ separate terms of use and privacy policies, if any. Pathfinder strongly encourages you to review any separate terms of use and privacy policies governing use of these Widgets.

  1. Access to Content and Services 

(a) Content Availability. We offer certain Content and Services on a subscription basis (“Subscription”) and certain Content and Services may be accessed on a non-Subscription basis, both of which are accessible upon payment of the applicable fees set forth in an applicable pricing schedule. Please contact us at info@pathfinderhi.com for more information and pricing.

(b) Pricing. The price of the Subscription is based on the number of Client Accounts (defined below) classified as “active” in the Pathfinder system and the subscription level indicated on the registration form. In addition, services provided by Pathfinder for practice management may include a fee based on the billed amount of insurance or the accounts receivable collected for insurance and non-insurance claims submitted through the Pathfinder system. On a monthly basis, Pathfinder will conduct an audit of current Client Accounts with a status of active and relevant insurance and non-insurance claims. All active Client Accounts will count towards your monthly invoiced amount based on the applicable pricing tier. You are solely responsible for maintaining an accurate census of clients, including the deactivation of Client Accounts when they are no longer receiving service from you. Pathfinder has no responsibility to assist you with account maintenance.

(1) Pricing for non-Subscription accounts and Subscription accounts are set forth in an applicable pricing schedule. Some Subscriptions are priced based on the number of client accounts classified as “active” in the Pathfinder system. A “client account” is an account for any individual to whom you provide therapy services. On a monthly basis, Pathfinder will conduct an audit of current client accounts with a status of active. All active client accounts will count towards your monthly invoiced amount based on the applicable pricing tier. You are solely responsible for maintaining an accurate census of clients, including the deactivation of client accounts when they are no longer receiving service from you. Pathfinder has no responsibility to assist you with account maintenance.
(2) In addition to the Subscription pricing, Pathfinder will charge you a percentage fee (as set forth in the applicable pricing schedule) of the adjusted insurance and non-insurance payments billed through the Services. Any payments received as a result of use of the Services must be reported to Pathfinder through the Services within 10 business days of their remittance for calculation of this fee. Failure to do so will be considered a late payment per Section 11(a) and will be subject to interest fees, as described herein.

(c) Consulting Service Hours. Some Subscriptions include a designated amount of our professional services hours. You understand and agree that any hours consumed in excess of the number of professional services hours included with your Subscription will be billed to you at our then-current rates for professional services.

  1. Term and Termination

(a) Initial Term

(1) The initial term for non-Subscription Services will be set forth on the pricing schedule and will begin on the day the pricing schedule is executed and submitted to Pathfinder.
(2) The initial term of any Subscription will be on a monthly, annual, or multi-year basis as identified on your initial registration form, and will begin on the first day that any training included in any Subscription(s) is scheduled, indicating that the Service is available for use by any User with a valid Subscription(s).

(b) Termination. This Agreement is effective as set forth herein and shall continue in full force until terminated. You agree that Pathfinder, in its sole discretion, may terminate your use of the Services or any part thereof upon prior notice, and remove and discard any Content, in the event you violate this Agreement. You agree that Pathfinder may immediately suspend your account, Subscriptions, and your access to the Services in order to conduct an investigation in the event it believes you have violated this Agreement or if it determines that you are a repeat infringer of another’s intellectual property or other rights. Pathfinder may also, in its sole discretion and at any time, discontinue providing the Services, any part thereof, any Content or any products or services advertised thereon, with or without notice. In addition to any other method of termination or suspension provided for in this Agreement, Pathfinder reserves the right to terminate this Agreement at any time and for any reason upon 10 days’ notice to you. Further, you agree that Pathfinder shall not be liable to you or any third-party for any termination or suspension of your access to the Services or any part thereof, removal of Content or sale of any products. Except as otherwise set forth in this Agreement, you may terminate this Agreement at any time by immediately discontinuing all access to the Services and by providing notice to Pathfinder of such discontinuance. Termination or cancellation of this Agreement shall not affect any right or relief to which Pathfinder may be entitled at law or in equity. Upon termination of this Agreement, you shall terminate all use of the Services (and any portion thereof) and any Content provided thereby. In the event of termination, you will not be entitled to any refund of any fees or other charges, if any, paid in connection with this Agreement.

(c) Cancellation. If you elect to receive a Subscription on an annual or multi-year basis, you may cancel the Subscription within the first 30 days after your initial purchase of any Subscription without penalty. No cancellations will be accepted after the first 30 days of your purchase of any annual or multi-year Subscription. In any event, customers (including those on a monthly subscription) must provide a 60-day notification of their intent to cancel services after the first 30-day period. Should you wish to cancel a Subscription without completing the term, you will be liable for all fees for the remainder of the term at a rate equal to an average of the three prior month’s billing cycle. If you choose to reinstate any previously cancelled Subscription, you acknowledge and agree that you will be responsible for all applicable reinstatement fees, including any then-current set up fees.

(d) Renewal. Subscriptions shall automatically renew for a period equal to the initial purchased term. For example, Subscriptions purchased on a monthly basis shall renew for additional monthly terms, and Subscriptions purchased on an annual basis shall renew for additional 1 year terms unless earlier terminated in accordance with this Agreement. All renewed Subscriptions shall be billed at the then-current Subscription rates based on the renewal term as determined by the subscription length.

(e) Suspension. If you choose to suspend or “hold” any Subscription instead of termination of any Subscription, you understand and agree that you will be responsible for monthly payment in an amount equal to Pathfinder’s then-current Subscription fee for the lowest pricing tier. Additionally, the period during suspension will not be considered when calculating the remaining time in the term of the Services. For example, if you choose to suspend your Subscription for two months during a 1 year term, the effective period for the Services will be 14 months.

(f) Data Storage Upon Termination.

(1) You hereby acknowledge that we do not have any obligation to store or otherwise keep or maintain User Content after the termination of this Agreement, except as provided in this Agreement or as required by applicable law. Except as prohibited by applicable law, following termination of this Agreement, we shall have the right to permanently and unconditionally delete, erase or otherwise destroy any User Content. If applicable to the Service we provided to you, we will give you written notice before deleting your User Content and you will have 14 days from receipt of such written notice to request a copy of your User Content. You will be responsible for all costs associated with and relating to creating a copy of your User Content, including, but not limited to, hourly labor costs, hardware costs, and shipping costs. Except as set forth herein, our right to delete the User Content pursuant to this Agreement is absolute and shall not be modified by any notice, request or demand.

(2) In no event shall Pathfinder be obligated to manipulate the User Content or otherwise provide the User Content any non-native form, unless we otherwise agree to in writing.

11. Fees

(a) Payment Terms. IPayment for invoices are dues within 10 days of the date of the invoice. If any payment owed to us is not paid in full on or before the 10th day following the date of the invoice, such amounts will be past due and subject to a 5% per month interest fee or the maximum rate permitted by law, whichever is more. You agree to reimburse us for any costs we incur as a result of any collection activity, including, but not limited to, reasonable attorney’s fees. We may increase the fees for a Service on the anniversary of the initial term for such Service by giving you 30 days’ advance written notice together with the new pricing schedule. You understand and agree that you are not entitled to any refunds for any reason.

(b) Setup Fees. If applicable, a one-time setup fee may be charged that covers the implementation of the Services, including the creation of a customer database, data entry of any custom protocols/skillsets (up to 500 skills), and initial training of staff provided by means of remote communication for the first ninety (90) days.

(c) Training. On-site training is available for an additional cost upon request and as quoted by Pathfinder. Requests for training or additional setup beyond the first 90 days (excluding instances where additional locations are added to the organization’s account) will be available upon request for an hourly rate from Pathfinder.

  1. User Representations

(a) Your Representations. You hereby represent and warrant to Pathfinder that:

(1) You are an individual that provides or assists with autism therapy administration, coordination or management (which includes licensed or certified behavioral health specialist in the United States);
(2) You have reached the age of majority in the jurisdiction where you reside (18 in most jurisdictions) or otherwise have the power and authority to enter into and perform your obligations under this Agreement;
(3) All information provided by you to Pathfinder is truthful, accurate, and complete;
(4) You will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of the Services or any part thereof;
(5) You have provided and will maintain accurate and complete registration and Subscription information with Pathfinder, including, without limitation, your legal name, email address and any other information Pathfinder may reasonably require;
(6) Your access to and use of the Services or any part thereof and/or purchase and use of any products or services will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject;
(7) You will immediately notify Pathfinder in the event that you learn or suspect that your registration and/or Subscription information, username or password has been disclosed or otherwise made known to any other person;
(8) You will not use the Services to gain competitive intelligence about Pathfinder, the Services (or any part thereof) or any product or service offered in connection with the Services or to otherwise compete with Pathfinder or its licensors or affiliates; and
(9) If you purport to be the agent of, represent or otherwise act on behalf of an entity or any other person, that you are in fact an authorized representative of such entity or other person.

(b) Additional Representations. In the event that you post any User Content to, provide any Feedback via the Services, or request Pathfinder include any protocol or skillsets, you hereby make the following additional representations and warranties to Pathfinder:

(1) You are owner of such User Content, Feedback or data or otherwise have the right to grant Pathfinder the licenses or assignments granted pursuant to this Agreement;
(2) You have secured any and all consents necessary to use the User Content, Feedback, or data and to grant the foregoing licenses or assignments;
(3) The User Content, Feedback, or data, or use thereof, does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such User Content or Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights;
(4) The use of any User Content, Feedback, or data will not result in harm or personal injury to any third party; and
(5) All factual information contained in the User Content or Feedback is true and accurate.

(c) Government Agencies. You represent that you are not, nor do you represent, a government agency, and are not acquiring the Services pursuant to a government agreement or with government funds. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, Defense Federal Acquisition Regulation (“DFAR”) section 252.227-7014(a)(l) and DFAR section 252.227-7014(a)(5) or otherwise, all software, Services, and accompanying documentation provided in connection with this Agreement are “commercial items,” “commercial computer software,” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution thereof by or for the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

  1. Prohibited Uses

(a) Account Use. You are solely responsible for any and all acts and omissions that occur under your account or password.

(b) Unacceptable Use. You agree not to engage in unacceptable use of the Services or any part thereof or any User Content, which includes, without limitation:

(1) Use of the Services to post, store or disseminate material or information that, is or to a reasonable person may be false, fraudulent, unlawful, harmful, tortious, abusive, obscene, pornographic, defamatory, libelous, harassing, invasive of another’s privacy, offensive, vulgar, threatening, malicious, hateful or racially, ethnically or otherwise objectionable;
(2) Use of the Services to post, store or disseminate Content, files, graphics, software or other material or information that actually or potentially infringes the rights of any person, including, without limitation, the copyright, trademark, patent, trade secret or other intellectual property rights, or privacy, moral or publicity rights, of any person;
(3) Use of the Services to interfere, disrupt or attempt to gain unauthorized access to other accounts on the Services, to restricted portion of the Services, to Content, or any other computer network or equipment;
(4) Use of the Services to post, store or disseminate viruses, Trojan horses or any other malicious code or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware, system or telecommunications equipment;
(5) Use of the Services to post, store or disseminate any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other fraudulent schemes, or any other form of solicitation;
(6) Use of any manual or automated software, devices or other processes to “crawl” or “spider” any web pages contained in the Services (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, service or other data from the Services);
(7) Use of the Services to gain competitive intelligence about Pathfinder, the Services, or any product or service offered in connection with the Services or to otherwise compete with Pathfinder, our affiliates, or licensors;
(8) Framing or otherwise simulating the appearance or functions of the Services or any portion thereof;
(9) Harvesting or otherwise collecting any information about other users, including, without limitation, email addresses or other contact information of other users; or
(10) Use of the Services to engage in any activity that, as determined by Pathfinder in our sole discretion, may intentionally or unintentionally violate this Agreement, violate any applicable laws or regulations, or conflict with the spirit or intent of this Agreement.

  1. Links

The Services may include, or third parties may provide, links to other websites or resources on the Internet. Because Pathfinder has no control over such websites or resources, you acknowledge and agree that Pathfinder is not responsible for the availability of such external websites or resources, and Pathfinder does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such websites or resources or for any privacy or other practices of the third parties operating those websites or resources. You further acknowledge and agree that Pathfinder shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such Content, goods or services available on or through any such website or resource. Pathfinder strongly encourages you to review any separate terms of use and privacy policies governing use of these third party websites and resources.

  1. Disclaimers

(a) Informational Use Only. The Services, and any products or services provided in connection with the Services, are available are for informational and educational purposes and are not a substitute for the professional judgment of a health care professional in diagnosing and treating patients and developing therapy plans. Unless authorized and permitted by law, you may not advise, offer diagnosis, or otherwise provide treatment to users of the Services. Neither the Content nor any other products or services offered in connection with the Services are intended to be the sole basis for any treatment or therapy. By accessing this information, you assume full responsibility for the use of the information and agree that Pathfinder is not responsible or liable for any claim, loss, or damage arising from the use of the information. Pathfinder does not recommend or endorse any specific treatment plans, therapy programs, drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses, or other information that may be mentioned or included in the Services. Your reliance upon the Content obtained or used by you is solely at your own risk. For the avoidance of doubt, recommendations for therapist continuing education programs are not endorsements of any such continuing education programs and Pathfinder will not be responsible or liable for any claim, loss, or damage arising from your use of or enrollment in any such continuing education program.

(b) Errors and Defects. We use reasonable efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services, any part thereof, any Content, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Services (or a portion thereof) may be inaccessible or inoperable for any reason and without notice to you, including, without limitation: equipment malfunctions, periodic maintenance procedures or repairs which Pathfinder may undertake from time to time, or causes beyond the control of Pathfinder or which are not foreseeable by Pathfinder.

(c) User Content. We do not control the Content posted by other users, nor do we have any obligation to monitor such Content for any purpose. Despite the fact that we have no monitoring obligations, we reserve the right in our sole discretion to remove any and all material that we find is actually or potentially inappropriate, offensive, illegal or harmful in any respect or which may otherwise violate this Agreement. Because the Content offered via the Services is provided by you and other users, and because we do not monitor or exercise control over the Content, we do not make any warranties or representations regarding any of the Content offered via the Services or the quality thereof. We do not necessarily approve, endorse, sanction, encourage, verify or agree with any message posted by our users or otherwise embodied in the Content. You understand that by using the Services (or any portion thereof), you may be exposed to Content that may be offensive, indecent, vulgar, defamatory or otherwise objectionable, and that in no way shall Pathfinder be liable under any theory for such exposure.

(d) No Backups. Pathfinder is not a backup service for storing User Content, and Pathfinder shall have no liability regarding any loss of User Content. You are solely responsible for creating backups of any User Content you post.

(e) Disclaimer of Warranties. TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PATHFINDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT) ARISING OUT OF OR RELATING TO (1) THE USE OF OR INABILITY TO USE THE SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICES; (2) RELIANCE ON THE SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICES; (3) ERRORS, INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS, SECURITY BREACHES; (4) INFORMATION COMMUNICATED THROUGH CHAT ROOMS, BULLETIN BOARDS, MESSAGE ROOMS, OR OTHERWISE COMMUNICATED VIA THE SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICES; (5) THE COMPLIANCE WITH ANY LAW, RULE, REGULATION, LAW ENFORCEMENT, GOVERNMENT OFFICIALS, OR LEGAL AUTHORITY OR THE LIKE; (6) THE COMPLIANCE WITH ANY POLICY, PROCEDURE, OR GUIDELINE OF ANY APPLICABLE HEALTH CARE FACILITY OR HEALTHCARE PROVIDER; OR (7) ANY OTHER FAILURE TO PERFORM BY PATHFINDER OR PATHFINDER’S CONTENT PROVIDERS. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER PATHFINDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, PATHFINDER MAKES NO WARRANTY THAT THE SERVICES, AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICES, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION FOUND THEREON WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT PATHFINDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PATHFINDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICES (OR ANY PART THEREOF), AND ANY PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY CONTENT, PRODUCTS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES OR OTHERWISE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; OR (D) ANY OTHER MATTER RELATING TO THE SERVICES (OR ANY PART THEREOF) OR THE PURCHASE OF ANY OF PATHFINDER’S PRODUCTS OR SERVICES, INCLUDING THE PURCHASE OF ANY SUBSCRIPTION. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL PATHFINDER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES, SELLING OR PURCHASING ANY CONTENT OR PURCHASING PATHFINDER’S PRODUCTS OR SERVICES OR ANY AMOUNT RETAINED BY PATHFINDER FOR PROVIDING THE SERVICES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

  1. Indemnification

You agree to defend, indemnify and hold harmless Pathfinder, its officers, members, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with:

(a) Your access to or use of the Services or any part thereof;
(b) Any User Content you post via the Services;
(c) A breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement;
(d) Infringement or misappropriation of any intellectual property, confidentiality, or other rights of Pathfinder or third parties by you,
(e) Any negligence or willful misconduct by you;
(f) Any other claim related to your performance under this Agreement;
(g) Your use of any Content, services, or products provided by Pathfinder; or
(h) Your violation or alleged violation of any applicable laws, rules, regulations, or policies, procedures, or guidelines of any applicable health care or treatment facility.

  1. Compliance Standards and Data Management.

(a) We take commercially reasonable steps to provide and maintain a secure end-user environment using industry and regulatory standard data security practices; however, it is your responsibility to ensure that your use of the Services and our associated security practices are compliant with your corporate policy, industry regulation, and all applicable state, federal or local law.

(b) You acknowledge and agree to the following:

(1) We do not maintain nor provide end-user compliance reporting or proof of compliance of any kind.
(2) We shall not be liable for fines, fees, or any other liability arising from your use of the Services relating to any industry compliance, regulation, federal, state, or local law including but not limited to those arising from a loss of confidentiality, integrity and/or availability of any of your User Content posted via Services.
(3) We will not access such User Content except as required in order to provide the Services or as may be required under laws or regulations applicable to Pathfinder and you. In the event any User Content is requested by a third-party to comply with applicable law, we will immediately notify you prior to accessing or releasing such User Content.

  1. Professional Services

We may provide additional professional services to you, as may be agreed upon in a separate agreement, from time to time. Additional professional services may include, without limitation, services provided by us for product support to the extent required to remedy any Services support or performance issues caused by or resulting from your failure to comply with your responsibilities as described in this Agreement. In each such event, we will invoice you for the additional professional services at our then-current rates for professional services, unless otherwise agreed to in writing by the parties, together with all reimbursable expenses that we incur in providing such additional professional services.

  1. Copyright Policy

We respect the intellectual property rights of others and ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify us and include the instructions in our Copyright Policy, located at www.pathfinderhi.com/copyright-policy. The terms and conditions of such Copyright Policy are hereby incorporated into this Agreement.

  1. Miscellaneous

(a) Independent Contractors. You and Pathfinder are and shall be independent contractors, and neither you nor Pathfinder byvirtueof this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

(b) Notice. Any notices to either party under this Agreement shall be in writing and delivered either electronically, including via email sent with a return receipt request, via a secure and reliable method; by hand; sent by nationally recognized overnight courier service; or by registered or certified mail, return receipt requested, to the address set forth below or to such other address as that party may hereafter designate by notice. Notice provided electronically or by hand shall be effective when received. All notices provided via a nationally recognized overnight courier service which shall be no greater than 1 business day after being sent by a nationally recognized messenger service or 3 days after being sent by mail.

(c) Expenditures and Investments. You acknowledge and agree that any expenses that you incur in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may be terminated as provided herein. You shall not make a claim against Pathfinder, and Pathfinder shall not be liable with respect to the recoupment of any expenditures or investment made by you in anticipation of the continuation of this Agreement beyond the term hereof.

(d) Consent To Do Business Electronically. Pathfinder uses and relies upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing its obligations and exercising its rights under this Agreement. Neither you nor Pathfinder will prevent or inhibit in any way the other party from printing, saving or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware and other equipment upgrades and purchases, in order to be able to conduct business electronically.

(e) Injunctive Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to Pathfinder which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that Pathfinder has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Pathfinder may have for your breach of this Agreement.

(f) Governing Law and Venue. The validity and effect of this Agreement shall be governed by, and construed and enforced in accordance with the laws of Delaware, without regard to its conflicts or choice of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any suit, action or proceeding concerning or relating to our Services (or any portion thereof), its use, these terms, any sale or any other product, service, policy or procedure of Pathfinder, must be brought exclusively in a court of competent jurisdiction in the state or federal courts located in Johnson County, Kansas, and you hereby irrevocably consent to the jurisdiction of such court (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding, you irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient or improper forum.

(g) Attorney’s Fees. If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.

(h) Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting and construing this Agreement.

(i) Force Majeure. If the performance of any part of this Agreement by either party (other than payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor dispute, act of God, telecommunications failure or any other cause beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause.

(j) Entire Agreement. This Agreement, including any other agreements or additional terms referenced herein, constitutes the complete and exclusive statement of the Agreement between the parties with respect to the Services, and, unless otherwise expressly provided herein, it supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Services.

(k) Waiver. Our waiver of any default or breach will not constitute a waiver for any other subsequent default or breach.

(l) Severability. If any provision of this Agreement is found unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision. As so reformed or modified, the court shall fully enforce this Agreement.

(m) Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.

(n) Assignment. You may not transfer or assign this Agreement in whole or in part, by operation of law or otherwise, without our prior written consent; provided that no such consent will be necessary in cases of merger, reorganization, or sale of substantially all of your company’s assets. Any assignment or transfer, or attempt thereof, without such prior written consent will be void and have no effect. All terms and conditions contained herein will inure to the benefit of, and be binding upon, any successor and any permitted assignees of the parties. Our consent to such assignment in one instance will not constitute our consent to any other assignment.

(o) Compliance with Non-US Law. Pathfinder makes no representation that the Services, Content or other material or information provided through the Services is appropriate to or available in locations outside of the United States. You may not use the Services or export Content in violation of United States export laws, regulations or restrictions. If you access the Services from outside of the United States, you are responsible for compliance with all applicable laws.