eCaring Terms of Subscription Agreement

These Terms of Subscription Agreement set forth below are hereby automatically incorporated into the Customer’s Agreement.

1.0   Definitions.

1.1    “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” (and its variants, including “controls,” “controlled by,” and “under common control with”) means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2    “Agreement” means the agreement between the Customer and eCaring.

1.3    “Client” means a person who during a specified period receives care from Customer or from any Customer Affiliate.

1.4    “Customer” means the customer identified in the Agreement.

1.5    “Customer Data” means all electronic data or information submitted by Customer in connection with the Agreement but excluding Deidentified Data (as defined below).

1.6    “eCaring” means EC Acquisition Holding LLC.

1.7    “eCaring Group” means eCaring, its Affiliates and their successors-in-interest.

1.8    “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1.9    “Services” means the services described in the Agreement.

1.10   “Users” means individuals who are authorized by Customer to use the Services, and who have been supplied user identifications and passwords by Customer (or by eCaring at Customer’s request).

2.0   Use of the Services.

2.1 eCaring’s Responsibilities. eCaring shall: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which eCaring shall give at least ten hours’ notice, or (b) any unavailability caused by circumstances beyond eCaring’s reasonable control, including, without limitation, force majeure events, failure of interconnected service providers, acts of God, acts of government, flood, network outages, hacking, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving eCaring’s employees), or Internet service provider failures or delays, (ii) comply with applicable laws and government regulations in providing the Services, and (iii) maintain reasonable safeguards for the protection of the Customer Data. eCaring may at any time and from time to time modify the Services. Upon request by Customer made within 30 days after the effective date of termination of the Agreement, eCaring’s sole responsibility will be to provide an electronic file to Customer containing all data submitted by Customer to eCaring in connection with the provision of Services (“Customer Data”). Upon request by Customer, eCaring will provide reasonable assistance with transition to another service provider for up to 30 days. Customer shall pay eCaring such fees and other expenses for such transition assistance as may be mutually agreed upon by Customer and eCaring at such time. After such 30-day period, eCaring will have no obligation to maintain or provide any of the Customer Data.

2.2    Customer’s Responsibilities.

(a) Customer (i) is responsible for Users’ and its Affiliates’ compliance with the Agreement, (ii) is responsible for Customer’s compliance with applicable federal and state laws and regulations with respect to use of the Services, (iii) is responsible for the accuracy, quality, integrity and legality of Customer’s Data and of the means by which Customer acquired such data, (iv) shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify eCaring promptly of any such unauthorized access or use, and (v) shall use the Services only in accordance with the terms of the Agreement and any applicable laws and government regulations.

(b) Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services to any third party, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein, (f) attempt to gain unauthorized access to the Services or their related data, systems or networks, (g) allow User accounts to be shared or used by more than one person at a time.

(c) Customer will ensure that only Users use the Services and they do so only in accordance with the terms of the Agreement. Each User will be assigned a unique User ID for accessing and use of the Services. User IDs may not be shared or used by more than one User. Customer is responsible for maintaining the confidentiality and security of User IDs and is solely responsible for all activities that occur under its User ID. Customer shall notify eCaring immediately of any unauthorized use of its password or account or access to the Services.

3.0   Grant of Licenses.

3.1 License to Customer. Subject to the terms and conditions of the Agreement, eCaring hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without the right to sublicense, to use the Services solely for its own internal business purposes in accordance with the Agreement.

3.2 License to eCaring. Customer grants eCaring a limited, worldwide, non-exclusive and non-transferable license to host, copy, transmit and display Customer’s Data as necessary for eCaring to provide the Services. eCaring may use anonymized and aggregated information gathered in connection with Customer Data it collects to improve the quality of the eCaring Services, for marketing of the eCaring Services and for other lawful purposes. For the avoidance of doubt, eCaring will not disclose any Customer Data that is not anonymized.

4.0   Proprietary Rights.

4.1 Reservation of Rights. eCaring reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

4.2 Customer Restrictions. Customer shall not (i) permit any third party to access the Services except as expressly permitted herein, (ii) modify or create derivate works of the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise as reasonably required for Customer’s own internal business purposes, (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (v) remove any proprietary notices from the Services or any other eCaring materials furnished or made available hereunder, or (vi) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

4.3 Ownership of Customer’s Data. As between eCaring and Customer, Customer exclusively own all rights, title, and interest in and to all of Customer’s Data.

4.4 Customer Feedback. Customer hereby grants eCaring a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any feedback, recommendations or other suggestions provided by Customer, including Users, relating to the operation of the Services.

4.5 Marketing. eCaring may use Customer’s name and logo as part of a general list of customers and may refer to Customer as a user of the Services in its advertising, marketing and promotional materials.

4.6 Privacy Policy. A copy of eCaring’s Privacy Policy is available at https://www.eCaring.com/legal/privacy-policy and shall be incorporated by reference herein as if fully set forth herein.

5.0   Confidentiality.

5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation, the terms of the Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2 Protection of Confidential Information. the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, (ii) use any Confidential Information of the Disclosing Party solely to perform the Agreement or exercise rights hereunder, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement.

5.3 Protection of Customer’s Data. Without limiting the above, eCaring shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data. eCaring shall not (a) modify Customer’s Data, (b) disclose Customer’s Data except as compelled by law, as expressly permitted by the Agreement or as expressly permitted in writing by Customer, or (c) access Customer’s Data except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

5.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

6.0   Warranties.

6.1 eCaring Warranties. eCaring warrants to Customer that (i) the Services shall perform in all material respects in accordance with the descriptions set forth at https://app.ecaring.com, (ii) to the best of eCaring’s knowledge, there is no claim or proceeding, pending or threatened, alleging that any of the Services infringes or misappropriates the intellectual property rights of any third party, (iii) the functionality of the Services will not be materially decreased during a Term, and (iv) it is the owner of the Services and procured the appropriate licenses so that Customer has the right to use any embedded third-party software.

6.2  Customer Warranties. Customer hereby represents and warrants that (a) it has the right to share Customer Data with eCaring, its privacy policies permit it to grant the rights it grants hereunder, and such sharing does not violate any state or federal laws; and (b) it is not a Covered Entity or a Business Associate of a Covered Entity, each as defined in HIPAA, and is not performing a service for which applicable state laws require a license (e.g. nursing or medical services). Customer agrees that if it is determined that it is a Covered Entity, Customer will notify eCaring immediately, and the Parties will negotiate in good faith eCaring's then-current business associate agreement, provided, however, that eCaring shall be permitted to continue to use any Deidentified Data created prior to entering into such business associate agreement unless otherwise instructed by an applicable regulatory authority.

6.3   Mutual Warranties. Each party represents and warrants to the other that (i) it has the legal power to enter into the Agreement, and (ii) it will not transmit to the other party any Malicious Code.

6.4  Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, ECARING DISCLAIMS ALL WARRANTIES, ORAL, WRITTEN, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, AND ANY WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM TRADE PRACTICE, COURSE OF PERFORMANCE, OR COURSE OF DEALING. ECARING DOES NOT WARRANT THAT THE PRODUCT OFFERINGS SHALL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ALL DEFECTS SHALL BE CORRECTED, OR THAT THE PRODUCT OFFERINGS SHALL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER FURTHER AGREES THAT THE MANUFACTURERS OR LICENSORS OF HARDWARE AND SUBLICENSED SOFTWARE MAY PROVIDE CERTAIN WARRANTIES AND OTHER TERMS AND CONDITIONS WITH RESPECT TO THE HARDWARE AND SUBLICENSED SOFTWARE SUPPLIED TO CUSTOMER UNDER THE AGREEMENT.  ECARING MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE HARDWARE OR SUBLICENSED SOFTWARE. FURTHER, ECARING DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF ANY VIDEO, EMAIL, TEXING AND/OR RELATED TELEPHONY SERVICES, INCLUDING ANY LIABILITY RELATED TO CUSTOMER DATA PROCESSED THEREIN.

7.0   Indemnification.

7.1 eCaring Obligations. eCaring shall indemnify, defend and hold Customer harmless against any claims, liabilities, demands, suits, actions, fines, costs or penalties (collectively, “Claim”) made or brought against Customer by a third party alleging that Customer’s use of the Services as expressly permitted hereunder infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Customer for any direct damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with the Claim, on condition that Customer (a) promptly gives eCaring written notice of the Claim; (b) gives eCaring sole control of the defense and settlement of the Claim (provided that eCaring may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides reasonable assistance in connection with the defense (at eCaring’s reasonable expense). The indemnification obligations set forth above do not apply to Claims to the extent that they arise from: (a) Customer’s use of the Services in violation of the Agreement or applicable law, or (b) Customer’s use of the Services after eCaring notifies Customer to discontinue use because of an infringement claim.

7.2 Customer Obligations. Customer shall defend the eCaring Group against any Claim made or brought against the eCaring Group by a third party (a) alleging that Customer’s Data, or Customer’s use of the Services in violation of the Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, (b) arising out of or resulting from a breach by Customer of its representations or warranties set forth in the Agreement, and shall indemnify the eCaring Group for any damages finally awarded against, and for reasonable attorney’s fees incurred by, the eCaring Group in connection with the Claim, on condition that the eCaring Group (x) promptly gives Customer written notice of the Claim; (y) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases eCaring of all liability); and (z) provides reasonable assistance in connection with the defense (at Customer’s reasonable expense).

7.3 Exclusive Remedy. This Section 7 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section. Notwithstanding the foregoing, eCaring may terminate the Agreement upon 45 days prior written notice if the Services infringe and eCaring determinates it cannot otherwise practically cure such infringement. In such event, eCaring shall provide reasonable transition services to convert Customer to a different service provider.

8.0   Limitation of Liability.

8.1 Limitation on Liability. IN NO EVENT SHALL AGGREGATE LIABILITY OF ECARING ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 CALENDAR MONTHS PRECEDING THE INCIDENT, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

8.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL ECARING HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8.3 Acknowledgement of Customer’s Sole Responsibility for Customer’s Services. CUSTOMER ACKNOWLEDGES THAT THE PROPER PROVISION OF CARE TO CUSTOMER’S CLIENTS IS SOLELY AND EXCLUSIVELY CUSTOMER’S RESPONSIBILITY AND CUSTOMER WILL NOT RELY SOLELY ON THE SERVICES TO ENSURE PROPER FULFILLMENT OF CARE PLANS BY CUSTOMER’S CAREGIVERS.

9.0 Non-eCaring Suppliers.

9.1 Use of non-eCaring Products and Services. eCaring or third parties may make third-party products or services available to Customer. Customer’s purchase and use of those products and services, and any exchange of data between Customer and such third party is solely between Customer and such third party. eCaring does not make any representation or warranty concerning such third-party product or service.

9.2. Integration with non-eCaring Applications. The Services may contain features designed to interoperate with non-eCaring applications. To use those features, Customer may be required to obtain access to non-eCaring applications from Customer’s suppliers, and may be required to grant eCaring access to Customer’s account(s) on the non-eCaring applications. eCaring cannot guarantee the continued availability of those applications and may cease providing them without entitling Customer to any refund, credit or other compensation.

10.0  General.

a.   Notices. All notices to a Party shall be in writing and sent to the addresses specified in the Agreement or such other address as a party notifies the other party and shall be deemed to have been duly given when received. Email notices shall be considered proper notice for all purposes.

b.   Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to its conflicts of law principles). The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of Delaware in all controversies arising out of, or relating to, the Agreement. Each remedy set forth herein shall be cumulative and in addition to any other remedy referred to above or otherwise legally available to a party.

c.   Force Majeure. Except with respect to payment obligations, neither party is liable for any failure of performance or equipment due to causes beyond its reasonable control, including, but not limited to, the following: (i) acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; (ii) any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; (iii) national emergencies, insurrections, riots, wars or acts of terrorism; (iv) unavailability of rights-of-way or materials; or (v) strikes, lock-outs, work stoppages, or other labor difficulties.

d.   Surviving Provisions. The following sections of the Agreement will survive any termination or expiration of the Agreement: Section 4.4 (Customer Feedback), Section 4 (Proprietary Rights), Section 5 (Confidentiality), Section 6 (Warranties), Section 7 (Indemnification), Section 8 (Limitation of Liability), and Section 10 (General).

e.   Miscellaneous. The Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument. Neither party shall assign its rights under the Agreement nor delegate any performance (other than the right to receive payments) without the other party’s prior written consent, except that eCaring may, without Customer’s consent, assign the Agreement to an affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which the Agreement relates or other business combination transaction. Any attempted assignment in violation of this Section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. The Parties may amend the Agreement only by a written agreement of the Parties that identifies itself as an amendment to the Agreement. If any part of the Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of the Agreement will remain in full force. The Agreement reflects the wording negotiated and accepted by the parties and no rule of construction shall apply against either Party. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. All earlier and contemporaneous negotiations and agreements between the Parties on the matters contained in the Agreement are expressly merged into and superseded by the Agreement.

eCaring Terms of Subscription Service

Effective Date: September 29th, 2022