THESE TERMS & CONDITIONS (ALSO REFERRED TO AS “TERMS” OR “AGREEMENT”) GOVERN YOUR LIMITED ABILITY/RIGHT TO USE TRIFECTA HEALTH SOLUTIONS, INC.’S (‘TRIFECTA”) PRODUCTS, SERVICES, WEBSITE, SOFTWARE AND APPS. IF YOU REQUESTED AND/OR REGISTERED FOR A FREE TRIAL FOR ANY PRODUCT(S), SERVICE(S), WEBSITE, SOFTWARE AND/OR APPS THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THESE TERMS, EITHER BY CHECKING A BOX OR CLICKING A LINK INDICATING YOUR ACCEPTANCE OR BY EXECUTING A MASTER SERVICES AGREEMENT AND/OR AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE THAT THESE TERMS APPLY TO A)YOU, B) ANY ORGANIZATION YOU ARE A PART OF AND USING THE PRODUCTS, SERVICES, SOFTWARE, APPS AND/OR WESBITE FOR, C) ANY OTHER PERSON/END USER THAT ACCESSES/USES ANY PRODUCT, SERVICE OR WEBSITE VIA YOUR EQUIPMENT, AUTHORIZATION AND/OR CREDENTIALS AND D) ANY PERSON THAT ACCESSES ANY PRODUCT, SERVICE, RECOMMENDATION, SOFTWARE, APPS AND/OR WEBSITE VIA YOUR AND/OR YOUR ORGANIZATIONS’ ACCOUNT (EACH PERSON OR ORGANIZATION LISTED IN ITEMS A-D BEING AN “END USER”) AND THAT YOU SHALL BE RESPONSIBLE FOR EACH END USER’S COMPLIANCE WITH AND/OR BREACH OF THESE TERMS FROM THE TIME THAT YOU FIRST ACQUIRED ANY PRODUCT AND/OR FIRST ACCESSED ANY SERVICE, SOFTWARE, APP AND/OR WEBSITE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (EACH AN “ORGANIZATION”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ORGANIZATION AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO YOU INDIVIDUALLY, SUCH ORGANIZATION AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSEES AND END USERS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE ANY PRODUCT, SERVICE, SOFTWARE, APPS OR WEBSITE.

Trifecta reserves the right to amend these Terms at any time, effective upon the posting of such modified Terms on its website, https://www.trifectahealthsolutions.com . Trifecta will attempt to communicate these changes to You via the website. It is Your obligation to ensure that You have read and understood the most recent Terms available on the Website prior to any accessing and/or use of any Product, Service, Software, App or Website.

1. DEFINITIONS

“Agreement” means these Terms and Conditions. These Terms and Conditions may also be referred to as “Terms”.

“Access Fee” means the monthly, annual or other fee (excluding any taxes and duties) and any applicable one-time-service fees payable by You or your Organization in accordance with the fee schedule set out on the website and/or as agreed to in Your Order Form for the Products and/or Services.

“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with, You and/or Your Organization (for example, one of Your subsidiaries).

“App” means any application developed or offered by Trifecta.

“Billing Contact” means Your nominated contact entity and address for billing purposes.

“Confidential Information” means any information which the disclosing party identifies as confidential or which ought reasonably to be considered confidential because of its nature and the manner of its disclosure, including any Data and information about the disclosing party’s business plans, technical data, personal information and the terms of Your Order but excluding information which is, or becomes, publicly available or that is already known by, or rightfully received by, the other party other than as a result of a breach of an obligation of confidentiality.

“Data” means any data inputted by You, Your Organization and/or any End User and into the website, via any portal and/or otherwise as well as any data that is made available to You as a direct result of Your use of any Product, Service, the website or any such portal.

“End User” means a unique individual authorized by You to use any Product, Service, Software, App and/or Website for You, Your Organization, Your, its or their benefit, including Your and/or Your Organization’s employees, representatives, contractors and agents and the employees, representatives, contractors and agents of any of Your and/or Your Organization’s Affiliates (if any) and any other person or third party accessing the Products, Services, Software, App and/or Website via your equipment, accounts and/or credentials.

“Intellectual Property Right” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

“Loss” means any and all liabilities, expenses, losses, damages and costs, fees (including, but not limited to legal and/or expert witness fees) and expenses, however arising. “

“Maximum End Users” means the maximum number of End Users as specified on Your Order Form or as subsequently varied from time to time by agreement of Trifecta.

“Order Form” means any agreement, electronic or paper document, by which You and/or Your Organization agree to acquire and use any Product, Service, Software, App and/or Website or access, subscribe to and use any Product, Service, Software, App and/or Website.

“Product” means any product offered by Trifecta which you acquire, access and/or use.

“Recommendation” means any suggestion, idea, solution, expense reduction or other item given to You or any End User.

“Renewal Date” means the date (monthly or annual) on which Your subscription renews.

“Renewal Period” means the period for which You and/or Your Organization agree to acquire and use any Product and/or subscribe to any Service, Software, App and/or Website and (subject to Section 3.1 for which You agree to prepay the Access Fees (either monthly or annually) as specified in Your Order Form.

“Service” means any Trifecta service you request, access and/or use, including but not limited to the Website, any portal, Software, App, Recommendation or other service.

“Software” means all of Trifecta’s information, in the form of computer programs or code that causes a computer or other device to carry out certain functions.

“Subscriber”, “You” and “Your” means the person and the company or other legal entity who is identified in the Order Form as the Subscriber. This can also be known as You, Your Organization and/or the “Account Owner”.

“Subscription Term” means the initial period (monthly or annual) for which you agree to subscribe to the Products, Services, Software, Apps and/or Website and for which you agree to prepay the Access Fees as specified in Your Order Form, together with each subsequent Renewal Period (unless terminated earlier in accordance with the terms of this Agreement).

“Trifecta” means Trifecta Health Solutions, Inc.

“Usage Limitations” means those limitations as specified on Your Master Services Agreement, Order Form and/or those other limitations that you are subsequently notified of and/or any updates of these Terms, and includes any limitations that Trifecta imposes in relation to future Products, Services, Software, Apps, Websites, modules or features.

“Website” means the Internet site at the domain “https://www.trifectahealthsolutions.com”, any other sites, portals and mobile applications owned, operated by or offered by Trifecta.

“Your Organization” means, any organization that You access/use any Product or Service for or who benefits from your accessing and/or use of any Product or Service.

Any reference to “includes” or “including” is on a without limitation basis.

2. END USER LICENSE AGREEMENT (USE OF ANY TRIFECTA PRODUCT, SERVICE, WEBSITE, APPS AND/OR SOFTWARE)

2.1. Rights to access and use the Products, Services, Software, Apps and Websites: Trifecta grants to You the right to access and use the Product, Services, Software, Apps and/or Website in accordance with Your Subscription type, as specified in Your Order Form (subject to any Usage Limitations). This right is non-exclusive and limited by, and subject to, the Terms and any Order Form.

Reservation of Rights. By signing the applicable Order Form, You and Subscriber irrevocably acknowledge that, subject to the license granted herein, neither You, Subscriber nor any End User has any ownership interest in the Product, Services, Software, Apps and/or Website provided to any of them. Trifecta owns all right, title, and interest in such Services, Products, Software, Apps and/or Website, subject to any limitations associated with intellectual property rights of third parties. Trifecta reserves all rights not specifically granted herein.

Marks and Publicity. Trifecta trademarks, trade names, service marks, and logos, whether or not registered (the “Marks”), shall be the sole and exclusive property of Trifecta, which shall own all right, title and interest therein. Trifecta may: (i) use Your, the Subscriber’s and Your Organization’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) statements in one or more press releases; and/or (iii) make such other use of Your, the Organization’s and/or the Subscriber’s name and/or logo as may be agreed between the parties. Additionally, Trifecta may include Your, the Organization’s and/or the Subscriber’s name and/or logo within its list of customers for general promotional purposes. Trifecta shall comply with Your trademark use guidelines as such are communicated to Trifecta in writing and Trifecta shall use the marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.

You acknowledge and agree that, subject to any applicable laws: a. You and the Subscriber are responsible for all End Users’ proper and compliant use of the Products, Services, Software, Apps, Recommendations and/or the Website (whether authorized by You, the Subscriber or not); b. the Subscriber controls each End User’s level of access to and use of the Products, Services, Software, Apps, Website, Recommendations and/or Data at all times and can revoke or change an End User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an End User or shall have that different level of access, as the case may be; c. End Users’ user names and passwords may not be shared or used by more than one individual and You and/or the Subscriber may only re-assign access rights to a new individual user where an existing End User no longer requires the rights to access and use of the Products, Services, Software, Apps and/or Website; and d. if there is any dispute between You, Subscriber and an End User regarding access to any Product, Service, Software, App, Website, Recommendation or Data, the Subscriber shall decide what access or level of access to the relevant Product, Service, Software, App, Website, Recommendation or Data that End User shall have, if any. Only the End Users authorized by the Order Form shall be permitted to access and use any Products, Services, Software, App, Recommendation and/or the Website and neither You, the Subscriber, Your Organization or any End User shall assign, rent, lease, license, sell, resell, transfer or allow any other person or third-party to access or use the Products, Services, Software, Apps, Website, Recommendation or the Data. You may not install any code, software or other material in or onto any Product, Service, Software, App, Recommendation and/or the Website other than Data specifically requested by that platform.

2.2. Our right to make changes to the Products, Services, Software, Apps, Recommendations and/or Website: Trifecta may modify the Products, Services, Software, Apps, Recommendations and Website from time to time, including by adding or deleting features and functions, as we continually improve our Products, Services, Software, Apps and/or Website and the experience we offer You and/or any End User. You acknowledge that Trifecta does not control the availability, functionality, experience, effectiveness, efficacy, and/or results of and/or any changes made to or by any third party to any third party product and/or service that may be made available to You and any End User by Trifecta via any Product, Service, Software, App, link, connection, referral and/or Website and that these types of third party products, services and/or changes thereto may impact the functionality of the Products, Services, Software, Apps and/or Website. You acknowledge that Trifecta makes these third-party products and services available merely as a convenience to you and shall have no responsibility or liability for functionality and/or failure of the same.

3. YOUR OBLIGATIONS

3.1. Payment obligations: You agree as follows: a. An invoice for the Access Fee will be issued: i. monthly or annually in advance (depending on Your subscription type) at the beginning of Your Subscription Term and subsequently on each Renewal Date; or ii. where we offer, and You select, an annual subscription with monthly billing, monthly in advance during Your Subscription Term. b. All invoices will include the Access Fee for the corresponding period of use (including any one-time-service fees, cost, expenses or other applicable charges that shall be payable at that time). Trifecta will continue invoicing You monthly or annually in advance (as the case may be) until the Subscription Term is terminated in accordance with Section 8. c. All Trifecta invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice within five days of the invoice date. You are responsible for payment of all applicable taxes and duties in addition to the Access Fees. If You are required to deduct or withhold any tax, You must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding. d. If any invoiced amount remains unpaid after the payment due date then Trifecta may charge You a late payment charge of $500 and interest accrued at the rate of 1.5% per month unless otherwise prohibited by law. e. If Trifecta spends any money collecting overdue amounts from You then You will reimburse Trifecta for those costs, expenses and fees, including but not limited to reasonable attorney and expert witness fees.

3.2. Variations to Access Fees: Subject to Section 3.5, the Access Fee will remain fixed during the initial period of Your Subscription Term or the relevant Renewal Period (as applicable). Trifecta reserves the right to increase the Access Fees for the Services on 30 days’ prior, written notice to You with any such increase to then take effect on the day following the end date of such notice period. 

3.3. General obligations: You and each End User must only use the Products, Services, Software, Apps, Recommendations and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Trifecta or condition posted on the Website for commercial purposes only.

3.4. Access conditions: a. You must ensure that all usernames and passwords (including any passwords allocated to any authorized End Users) allowed to access the Products, Services, Software, Apps, Recommendations and/or Website are kept secure and confidential. You must immediately notify Trifecta of any unauthorized use of any passwords or any other breach of security and Trifecta will reset Your password(s) and You must take all other actions that Trifecta reasonably deems necessary to maintain or enhance the security of Trifecta’s computing systems and networks (including the Software, Apps and Website) and Your access to the Products, Services, Software, Apps, Recommendations and/or Website. b. When accessing and using the Products, Services, Software, Apps, Recommendations and/or Website, You must not: i. attempt to undermine the security or integrity of Trifecta’s computing systems or networks (including the Software, Apps and Website) or, where the Products, Services, Software, Apps and/or Website are hosted by a third party, that third party’s computing systems and networks; ii. use, or misuse, the Products, Services, Software, Apps, Recommendations and/or Website in any way which may impair the functionality of the Products, Services, Software, Apps, Recommendations Website or other systems used to deliver the Products, Services, Software, Apps, Recommendations or Website or impair the ability of any other user to use the Products, Services, Software, Apps, Recommendations or Website, including by misusing the Products, Services, Software, Recommendations Apps or Website in a manner that materially exceeds reasonable usage or use patterns or by using the Products, Services, Software, Apps, Recommendations and/or Website in a malicious, fraudulent or unlawful manner; iii. attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Products, Services, Software, Apps, Recommendations or Website are hosted; iv. transmit, or input into any Product, Service, Software, Apps, Recommendations or Website, any files that may damage any computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); or v. attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Products, Services, Software, Apps or to operate the Website.

3.5. Usage Limitations: a. In addition to the Maximum Total End Users, Your use of the Products, Services, Software, Apps, Recommendations and/or Website may be subject to Usage Limitations, including but not limited to monthly transaction volumes You are permitted to make against Trifecta’s application programming interface (“API”). Any Usage Limitations will remain in effect for the duration of the initial period of Your Subscription Term or the relevant Renewal Period (as applicable). Trifecta reserves the right to vary the Usage Limitations on 30 days’ prior, written notice to You with any such variation to then take effect on the day following the end date of such notice period (unless Trifecta chooses to relax certain Usage Limitations, in which case such variation will take effect immediately). b. You may not use or access the Products, Services, Software, Apps, Recommendations or Website in a manner that exceeds these Usage Limitations. If You exceed Your Usage Limitations then You must either disable or correct such use, or our Subscription will be upgraded to the subscription tier which corresponds with Your actual use. c. Where Your Subscription is upgraded in accordance with Section 3.5(b), Trifecta will invoice You for the Access Fee that corresponds to Your new Subscription tier and you agree that the new Access Fee will apply from the date of such upgrade.

3.6. Usage reviews: You agree that Trifecta may review Your use of the Products, Services, Software, Apps, Recommendations and/or Website at any time during the Subscription Term, and You will provide any reasonable assistance to verify Your compliance with this Agreement, including but not limited to a full audit. Trifecta may suspend or terminate Your use of the Products, Services, Software, Recommendations, Apps and/or Website immediately upon written notice of non-compliance identified in such review/audit (in addition to exercising any other rights or remedies Trifecta may have at law or in equity).

3.7. Communication Conditions: a. As a condition of these Terms, if You use any communication tools available through any Product, Service, Software, Apps, Recommendation and/or Website (such as any portal, forum, chat room or message center), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Product, Services, Software, App, Recommendation and/or Website, including: offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software or other content that may be offensive or harmful to any other users of or to the Products, Services, Software, Apps and/or the Website, or in material violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). b. When You generate any communication to any Product, Service, Software, App and/or Website, You represent that You are permitted to generate such communication. Trifecta is under no obligation to ensure that the communications are legitimate or that they are related only to the permitted use of the Products, Services, Software, Apps, Recommendation  and/or Website. As with any other electronic, digital and/or web-based forum, You must exercise great caution when using the communication tools available. However, Trifecta does reserve the right to remove any communication at any time in its sole discretion.

4. CONFIDENTIALITY AND PRIVACY

4.1. Confidentiality: The following is deemed Trifecta Confidential Information with or without marking or written confirmation: i the Products, Services, Website, Software, code, Apps and other related materials furnished by Trifecta; ii the oral and visual information relating to the and provided in the Products, Services, Website, Software, code, Apps and other related materials furnished by Trifecta or Trifecta’s training classes; and iii Trifecta’s representation, combination, segregation, analysis and other methods of modeled Data. Unless the relevant party has the prior written consent of the other or unless required to do so by law: a. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as expressly contemplated by these Terms or, where Trifecta is the recipient, in order to provide the Products, Services, Software, Apps, Recommendations and/or Website to You for your benefit or as otherwise allowed. b. Each party’s obligations under this Section will survive termination of these Terms. While Trifecta will keep all Personal Health Information (“PHI”) confidential, Trifecta does specifically reserve the right to deidentify, aggregate, analyze and report any and all of said Data (the “DeIdentified Data”), and retains any and all rights to use, sell, transfer, license, and otherwise distribute and disseminate such DeIdentified Data (the “Permitted Uses”) and any and all such Permitted Uses shall not be a breach of this Agreement.

4.2. Privacy: a. Trifecta maintains a privacy policy that sets out what information Trifecta collects about individuals and why, what Trifecta does with that information, and how Trifecta handles that information, which is attached to these terms and conditions (“Privacy Policy”). In the event of any conflict between these Terms and the terms of the Trifecta Privacy Policy, these Terms will take precedence. b. If You are subject to the territorial scope of the Regulation (EU) 2016/679 (GDPR), You agree that You are a “data controller” and that Trifecta is a “data processor” (as those terms are defined in the GDPR).

5. INTELLECTUAL PROPERTY

5.1. General: Title to, and ownership of any and all Intellectual Property Rights in the Products, Services, Software, Apps, Recommendations, code, Website and any documentation relating to the same remains the property of Trifecta (or its licensors). Any and all suggestions, solutions, corrections, contributions or improvements to Products, Services, Website, Software, Apps, Recommendations, code or other processes and/or procedures of Trifecta made by You, Your Organization, Subscriber and/or any End User shall be owned by Trifecta, and You, Your Organization, the Subscriber and any and all End Users hereby assign any such rights to Trifecta. Nothing in the Offer Form, these Terms or any other communication from Trifecta or You, Your Organization, Subscriber or any End User shall preclude Trifecta from owning or using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Trifecta in the performance of any Products, Services, Website, Software, Apps, Recommendations processes and/or procedures hereunder.

5.2. Ownership of Data: Title to, ownership of and any and all Intellectual Property Rights in, the Data remain Your property, excepting only the rights and ability of Trifecta to deidentify and use the DeIdentified Data as set forth in Section 4.1. However, Your access to the Data is contingent on full payment of the Trifecta Access Fees when due and any re-establishment fee due and payable under Section 5.6. You grant Trifecta a license to use, copy, transmit, store, and back-up Your Data for the purposes of enabling You to access and use the Products, Services, Software, Apps, Recommendations and/or Website and for any other purpose related to provision of the Products, Services, Software, Apps, Recommendations and/or Website to You. For the avoidance of doubt, this license is without limitation to  Trifecta’s right to create DeIdentified Data, compilations and/or analyses of the same or similar works based on Your Data.

5.3. Backup of Data: While Trifecta may as a convenience to You store, maintain or otherwise back up your Data, you acknowledge, agree and understand that You must independently maintain copies of all Data inputted into any Product, Service, Software, App, Recommendation and/or the Website. Trifecta adheres to its policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Trifecta expressly excludes, and you specifically waive, any liability of Trifecta for any loss of Data (including Data archived pursuant to Section 5.6) no matter how caused.

5.4. Third-party apps and Your Data: If You enable any third-party apps for use in conjunction with the Products, Services, Software, Apps, Recommendations and/or Website, You acknowledge that Trifecta may allow the providers of those third-party apps to access Your Data as required for the interoperation of such third-party apps with the Products, Services, Software, Apps, Recommendation and/or Website. Trifecta shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers. You also acknowledge that those third-party app providers are independent of Trifecta and those apps will be subject to terms and conditions and privacy notices set by their providers.

5.5. Accuracy of Data: You agree and acknowledge that You are responsible for ensuring the accuracy of Data inputted into any Product, Service, Software, App, Recommendation and/or Website by You or by any person on Your behalf (including Trifecta) and you will indemnify, defend and hold harmless Trifecta and any third-party from any Losses due to the inaccuracy, accuracy, use or loss of such Data. Trifecta is under no obligation to ensure that Your Data in any Product, Service, Software, App, Recommendation and/or the Website is an accurate representation of You, Your business or the matter that the Data is meant to represent.

5.6. Deletion and recovery of Data a. Where: i. You choose to discontinue Your access and or use of any Products, Services, Software, App, Recommendation and/or Website in accordance with Section  8; ii. either party terminates this Agreement in accordance with Section 8.3; iii. Trifecta terminates this Agreement in accordance with Section 8.5; or iv. Trifecta otherwise suspends and/or terminates Your access to the Products, Services, Software, App, Recommendation and/or the Website in accordance with this Agreement, it is Your responsibility to extract Your Data from the Products, Services, Software, Apps, Recommendations and/or Website prior to the effective date of such suspension or termination. Following the effective date of suspension or termination, Trifecta reserves the right, in Trifecta’s sole discretion, to either (i) delete Your Data or (ii) archive Your Data for a period of time of up to six months (upon the expiry of which time Trifecta may delete Your Data). b. If Trifecta has chosen to archive Your Data and if Your Products, Services, Software, Apps, Recommendations and/or Websites access and use are subsequently re-established within the archive period then Trifecta may restore Your access to the archived Data provided that You pay Trifecta in advance: i. all amounts in arrears related to Your unpaid Access Fee over the period that the Data was archived; and ii. a re-establishment fee of $1,000.00 or such other amount as is determined by Trifecta in Trifecta’s sole discretion and notified to You). c. Where your access to the Products, Services, Software, Apps, Recommendations and/or Website has been terminated and Trifecta has chosen to archive Your Data, if You omitted to extract Your Data prior to the effective date of such termination and You subsequently notify us that You require access to Your Data then Trifecta may temporarily restore Your access to the archived Data provided that You re-subscribe to the Products, Services, Software, Apps, Recommendations and/or Website, as the case may be, for a month and that You pay Trifecta the associated Access Fee together with a one-off fee of such amount as is determined by Trifecta in Trifecta’s sole discretion and as notified to You.

6. WARRANTIES AND ACKNOWLEDGEMENTS

6.1. Data: a. You represent and warrant that: i. You have obtained all necessary consents and are otherwise authorized to input the Data that You input into the Products, Services, Software, Apps, Recommendations  and/or Website, including any Data input into by any End User or by any third person on Your behalf; and ii. You are similarly authorized to access the processed Data that is made available to You through Your use of the Products, Services, Software, Apps, Recommendations and/or Website, in each case, whether the inputted Data is Your own or that of anyone else.

6.2. Rights of third parties/access to Data: a. You acknowledge and agree that Trifecta has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person that is enforceable against us by any person (including Your Affiliates) other than You. b. If You use the Products, Services, Software, Recommendations, Apps and/or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You agree that: i. You solely are responsible for ensuring that You have the right to use the Data; ii. In the case of a third person requiring access to Your Data (i.e., other than an authorized End User), You are responsible for authorizing any such person to access Your Data, and You agree that Trifecta has no obligation to provide any such person with access to Your Data without Your prior written authorization (and may refer any third party access requests for information to You to address); and iii. You shall indemnify, defend and hold harmless Trifecta against any Loss arising out of or in connection with Trifecta’s refusal to provide such third persons with access to Your Data and/or Trifecta’s enabling access by such third persons to Your Data where this has been done with Your written authorization or by utilizing your username, password or other access credentials.

6.3 ACKNOWLEDGEMENTS AND DISCLAIMERS: YOU, FOR YOU, THE SUBSCRIBER AND YOUR ORGANIZATION AND ANY END USERS, ACKNOWLEDGE AND AGREE THAT TRIFECTA PROVIDES NO WARRANTY FOR THE PRODUCTS, SERVICES, SOFTWARE, APPS, RECOMMENDATIONS AND/OR WEBSITE AND WITHOUT LIMITING THE FOREGOING: TRIFECTA PROVIDES THE PRODUCTS, SERVICES, SOFTWARE, APPS AND/OR WEBSITES (INCLUDING THE CONTENT) ON AN  “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” BASIS ONLY AND YOU, SUBSCRIBER, THE ORGANIZATION AND EACH AND EVERY END USER BEAR THE RISK OF USING IT. TRIFECTA PROVIDES NO WARRANTIES, GUARANTEES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.

a. The provision of, access to, and use of, the Products, Services, Software, Apps, Recommendations and the Website is merely provided as a convenience to You, is on an “as is”/”where/is”, “with all faults” and “as available” basis and any access and use of the same is at Your sole and own risk. b. Trifecta does not warrant that the use of the Product, Services, Software, Apps, Recommendations and/or the Website will be uninterrupted or error-free. Among other things, the operation and availability of the systems used for accessing the Products, Services, Software, Apps, Recommendations and/or the Website, including public or private telephone/telecommunications equipment/services, computer networks, broadband, 4G, 5G, and/or any advancements, successors and similar services and the Internet, can be unpredictable, hacked, compromised and may from time to time interfere with or prevent access to the Products, Services, Software, Apps, Recommendations and/or the Website. Trifecta is not in any way responsible for any such interference, compromise, hacking and/or prevention of Your access or use of the Products, Services, Software, Apps, Recommendations, Website and/or access to and/or use of your Data. c. Trifecta does not warrant that the Products, Services, Software, Apps, Recommendations and/or the Website will meet Your specific needs, requirements, specifications and/or desired results or that the Products, Services, Software, Apps , Recommendations or the Website will be suitable for any particular purpose whatsoever. It is Your sole responsibility to determine whether the Products, Services, Software, Apps, Recommendations and/or the Website meet the needs of Your business and are suitable for the purposes for which they are intended and used. d. You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to Your Data via the Products, Services, Software, Apps, Recommendations and/or Website will comply with laws applicable to You (including any laws requiring You to retain records).

6.4. No implied warranties: To avoid doubt, any and all implied conditions or warranties are expressly excluded and disclaimed by Trifecta and waived by You in so far as is permitted by law, including warranties of merchantability and fitness for purpose, title and non-infringement.

6.5. Consumer protection laws: You warrant and represent that You are acquiring the right to access and use the Products, Services, Software, Apps, Recommendations and/or Websites solely for the purposes of business and commerce and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction do not apply to the supply of the Products, Services, Software, Apps, Recommendations or Website, these Terms,  Order Form and/or any agreement between Trifecta and You.

7. LIMITATION OF LIABILITY

7.1. Indemnity: You shall indemnify, defend and hold harmless Trifecta from and against all Losses that Trifecta incurs arising out of or in connection with: a. Your breach of any of these Terms, any Order Form and/or other agreement with Trifecta and/or b. any End User and/or third-party claims against Trifecta relating to Your Data or otherwise to Your and/or any End User’s use and/or misuse of the Products, Services, Software, Apps, Recommendations and/or Website or any third-party app, website, product and/or service.

7.2. Trifecta is not responsible. To the maximum extent permitted by law, Trifecta will not be liable to You, the Subscriber, Your Organization and/or any End User and/or any other person in contract, tort (including but not limited to negligence), or otherwise, for any Losses (whether direct or indirect) arising out of, or in connection with, Your, the Subscribers, Your Organizations and/or any End User’s use of, or reliance on, the Products, Services, Software, Apps, Recommendations and/or Website or otherwise arising out of or in connection with these Terms, any Order Form, any agreement with Trifecta or use or misuse of the Data.

7.3. If, notwithstanding Section 7.2, Trifecta is determined to have any liability to You, any End User and/or any third party arising out of or in connection with these Terms, any Order Form, or Your or any of your End User’s use or misuse of the Products, Services, Website, Recommendations or third-party product or app, Trifecta’s liability in any respect will be limited to an amount equal to the lesser of $250,000.00 or the amount of one year’s annual subscription fees paid by the Customer .

8. TERMINATION

8.1. The Subscription Term may only be terminated in accordance with the Agreement.

8.2. Modifications by You to Your subscription: You may change Your subscribed Services by adding additional Products,  Services, Software, Apps, Websites or End Users or otherwise increasing Your subscription levels, if any are made available by Trifecta, at any time.

8.3. No-fault termination: The Subscription Term will renew automatically at the end of the initial period of Your Subscription Term and then subsequently at the end of each Renewal Period and the Access Fee for that month or year (as applicable) will continue to be due and payable in advance (in accordance with Section 3.1), unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the initial subscription period or the relevant Renewal Period (as applicable). If insufficient notice is given then: a. if Your subscription renews on a monthly basis, Your subscription will not be canceled until the next Renewal Date;
b. if Your subscription renews on an annual basis then, provided Your notice is received by Trifecta no later than seven days following the Renewal Date, Trifecta will accept Your notice of cancellation and will refund the Access Fees already paid by You in relation to the new Renewal Period. If Your notice is received by Trifecta more than seven days after the Renewal Date then Trifecta will accept Your notice of cancellation and may then choose (in its sole discretion) to refund some or all of the Access Fees already paid by You that relate to the unused portion of the new Renewal Period. Where we offer and You have selected an annual subscription with monthly billing then if your notice is received by Trifecta during the initial period of Your Subscription Term or more than seven days after the Renewal Date then Trifecta may invoice You for some or all of the Access Fees that relate to the unused portion of the initial subscription period or the new Renewal Period (as applicable).

8.4. Overdue: Access Fees are paid in advance, however in the event that Your account becomes overdue this must be settled within five days otherwise Trifecta reserves the right to suspend Your subscription and Your rights to access the Products, Services, Software, Apps, Recommendations, Website and the Data and to charge a reactivation fee to reinstate Your account (equal to the cost of a one-month subscription). The Billing Contact will be notified once an account becomes overdue. In the event such a request is made Trifecta may endeavor to contact You to confirm this and an in-application message may be posted for all End Users to see before Your account is suspended.

8.5. Breach: If You: a. breach any of these Terms (including by non-payment of any Access Fees), any terms and/or conditions of any Offer Form, any agreement with Trifecta, including but not limited to any Master Services Agreement, and do not remedy the breach within ten days after receiving notice of the breach if the breach is capable of being remedied;
b. breach any of these Terms and/or any terms of any Offer Form, Trifecta Agreement, including but not limited to any Master Services Agreement, and the breach is not capable of being remedied; or c. You are declared bankrupt or You become bankrupt, insolvent, or You elect into any bankruptcy process or filing, any liquidation or if a receiver or manager is appointed over any of Your assets, or You make any arrangement for the benefit of/with Your creditors, or become subject to any similar insolvency law or event in any jurisdiction, then (without limiting Trifecta’s termination and suspension rights in Section 8. Trifecta may take any or all of the following actions, at its sole discretion: i. terminate this Agreement and Your use of the Products, Services, Software, Apps, Data and/or  the Website; ii. suspend, for any definite or indefinite period of time, Your use of the Products, Services, Software, Apps, Data, Recommendations and/or the Website; iii. Or delete Your Data in accordance with Section 5.6.

8.6. Accrued Rights: Termination of these Terms and/or any Offer Form is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will: a. remain liable for any accrued charges and amounts which become due for payment before or after termination; and b. immediately cease to use the Products, Services, Software, Apps, Recommendations and the Website.

8.7. Expiration or termination: Those Sections which by their nature survive expiration or termination of any Offer Form, these Terms and/or any other agreement between You and Trifecta, including Sections 3.1, 4, 5, 6, 7, 8 and 10, will survive the expiration or termination of those agreements.

8.8. Refund Policy: Subject to Section 8.1, Trifecta does not provide refunds if You decide to stop using the Products, Services and/or Website at any time during Your Subscription Term.

9. HELP DESK

9.1. Technical Problems: You have a limited right to technical support, in accordance with the level of the service on Your subscription. Trifecta will endeavor to address all queries and requests for assistance received through the Website or via email to info@trifecta-healthsolutions.com as promptly as reasonably possible, but does not warrant that support will be immediately available.

9.2. Service availability: While Trifecta intends that the Products, Services, Software, Apps, Recommendations and/or the Website should be available 24 hours a day, seven days a week, it is possible that on occasions the Products, Services, Software, Apps, Recommendations and/or Websites may be unavailable to permit maintenance or other development activity to take place and subject to other interruption caused by or related to third parties, nature, acts of god, strikes, labor stoppages, civil; unrest, terrorism, government order or other force majeure type events (the “Uncontrollable Events”). If for any reason Trifecta, due to its fault,  has to interrupt the Products, Services, Software, Apps, Recommendations and/or Website for any period, Trifecta will use reasonable efforts to publish in advance details of such activity and availability. Trifecta cannot and will not be responsible for any interruption or unavailability due to Uncontrollable Events, intermittent maintenance, regardless of when performed, of any other reason outside of Trifecta’s control.

10. GENERAL

10.1. Entire agreement: These Terms, the Offer Form and any Master Services Agreement together with the Trifecta Privacy Policy (where applicable) and the terms of any other notices or instructions given to You under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Trifecta relating to the Products, Services, Software, Apps, Website, Recommendation, Data, systems, processes and procedures and Your access and use of the same and any other matters dealt within these Terms.

10.2. Waiver: A waiver of any breach of any provision in these Terms shall not be effective unless that waiver is in writing and is specifically stated in these Terms, any Offer Form, any Master Services Agreement or otherwise contained in a document (electronic or paper)  signed (or expressly acknowledged and/or accepted electronically) by the party against whom that waiver is enforced. If either party waives any breach, this waiver will not constitute a waiver of any other breach.

10.3. Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This Section does not apply to any obligation to pay money.

10.4. No Assignment. You may not assign or transfer any right under these Terms, any Offer Form, any Master Services Agreement or any other agreement or any of Your rights under any of the same to another person without Trifecta’s prior written consent.

10.5. Governing law and jurisdiction: These Terms, any Offer Form, any Master Services Agreement and/or any other agreement or matter involving Trifecta as it relates to You, Your Organization, the Subscriber, any End User and/or any third party claiming through any of the same are subject to and governed by the laws of the State of Ohio regardless of any conflict of law principals and after the dispute resolution and mediation processes set forth below are subject to the exclusive jurisdiction of the state and/or federal courts located in Summit County, Ohio.

Dispute Resolution/Negotiations. Where there is a dispute, controversy, or claim arising under, out of or relating to any Order Form, these Terms, any Master Services Agreement or any other agreement or matter involving Trifecta, You, Your Organization, the Subscriber, any End User and/or any third-party shall first notify Trifecta in writing of the nature of such dispute with as much detail as possible about the deficient performance of Trifecta. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to try to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties.

Mediation. If the dispute resolution/negotiations are unsuccessful, any dispute, controversy, or claim arising under, out of, or relating to any Order Form, these Terms, the Master Services Agreement or any other agreement or matter involving Trifecta shall be submitted to mediation in Summit County, Ohio.

Injunctive Relief. The requirement of dispute resolution/mediation does not prevent a party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. For clarity, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the mediator.

10.6. Severability: If any part or provision of these Terms, any Offer Form, and/or any Master Services Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder will be binding on the parties.

10.7. Notices: Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission unless an electronic error message is received by the sender. Notices to Trifecta must be sent to derekr@trifecta-healthsolutions.com. Notices to You will be sent to the email address(es) on record in our account information for You. You must keep all Your account information current.

Updated 9/6/2023