TERMS & CONDITIONS

PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

User Agreement

Effective date: July 1, 2024

Welcome to Nsight. The following terms of use (“Terms”) and Privacy Policy (together, the “User Agreement”) are a binding contract between you and NSIGHT HEALTH INC., a Florida corporation, (“Nsight”, “we” and “us”) and govern your use of our websites, products, services and applications, including but not limited to the services you purchase under the Services Addendum as updated from time to time on our website www.Nsightcare.com (the “Services”). By accessing or using the Services in any manner, you agree to be bound by the User Agreement. You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to this User Agreement on your behalf). If you are agreeing to this User Agreement on behalf of an organization or entity, you represent and warrant that you are authorized to agree to this User Agreement on that organization or entity’s behalf and bind them to this User Agreement (in which case, the references to “you” and “your” in this User Agreement, except for in this sentence, refer to that organization or entity). Your use of the Services is expressly conditioned upon your assent to all of the terms and conditions of this User Agreement to the exclusion of all other terms. If you do not agree to any of these terms and conditions, then please do not use the Services.

If you have any questions, comments, or concerns regarding the User Agreement or the Services, please contact us at support@nsightcare.com or at 1-888-270-4225.

Updates to the Services and the User Agreement

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services.

Nsight reserves the right, in its sole discretion, to modify the User Agreement at any time by posting a notice on the Nsight website, by sending you a notice through the Services, via email or by some other means. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by you following such notice constitutes your acceptance of the terms and conditions of the User Agreement as modified.

Eligibility and Access to the Services

You understand and agree that Nsight is located in the United States, that we will process and store your information, including your Personal Information, in the United States, and that your use of the Services will be governed by the laws of the State of Florida, United States. If you do not agree, you may not use the Services.

You may be required to register and select a password and username (“Nsight User Name”) to use certain Services. You may sign up for the Services directly or through the use of a Services access code (“Access Code” or “Test Code”) provided by a third party entity ( “Provider”). For clarity, the term “Provider” is deemed to include all applicable third party providers processing your data on behalf of such Provider, which may include, without limitation, health care providers, insurance companies, managed care plans and medical facilities.

You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Nsight User Name a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission. You shall only use third party accounts owned by you and not by any other person or entity.

You will not share your account or password with anyone, and you must protect the security of your account and your password. You will keep all your registration information accurate and current. You are responsible for any activity associated with your account. Any failure to comply with this provision may result in immediate termination of your account. Nsight reserves the right to refuse registration of, or cancel a Nsight User Name in its discretion.

You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party that Nsight has not authorized in advance, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at support@sightcare.com.

Your User Materials

In the course of using the Services, you and other users may provide information which may be used by Nsight and which may be visible to other users. Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Any results, conclusions, reports or other materials derived from your User Submissions that are specific and identifiable to you are “Results,” and together with User Submissions are “User Materials.”

In order to display your User Materials on the Services, to allow other users to enjoy them (where applicable) and to provide and improve the Services, you grant us certain rights in those User Materials, as follows:

• For all User Materials, you hereby grant Nsight a license to (1) use, translate, modify (for technical purposes, for example, making sure your content is viewable on both iOS devices and desktop computers), reproduce and otherwise act with respect to such User Materials, in each case, in order to enable us to provide and/or improve the Services, and (2) use any and all such User Materials in an aggregated and anonymized form for any purpose, provided that any such use does not identify you individually.
• For all Results, you hereby grant Nsight a license to use, translate, modify, reproduce, create derivative works of, distribute and otherwise freely act with respect to such Results in an anonymized form for any purpose.
• If you share any User Materials in a manner that only certain users, clinicians, individuals or entities specified by you (“Specified Users”) can view (for example, sharing your Results with an individual or entity of your choosing) (a “Limited Audience User Material”) then you grant Nsight the licenses above, as well as a license to display, perform, share and distribute your Limited Audience User Material for the purpose of making such Limited Audience User Material accessible to such Specified Users and you grant such Specified Users a license to access that Limited Audience User Material and to use and exercise all rights in it as permitted by the functionality of the Services. Please note that if you register with Nsight using an Access Code, the Provider is considered a Specified User, and User Materials may be shared with such Provider. Also any clinician with whom you share User Materials is a Specified User.
• If you share any User Material publicly on the Services or elsewhere (“Public User Material”), you grant Nsight the licenses above and a license to display, perform and distribute your Public User Material for the purpose of making it accessible to all users of the Services. You also grant all other users of the Services a license to access such Public User Material, and to use and exercise all rights in it, as permitted by the functionality of the Services.

You agree that all the licenses you grant above are non-exclusive, royalty-free, sublicensable, perpetual, transferable, irrevocable and worldwide.

By providing any User Material in any way, you represent and warrant that you have all necessary rights to do so and to grant the licenses set forth above. The foregoing license grant to Nsight does not affect your ownership of or right to grant additional non-exclusive licensees to the material in your User Materials, unless otherwise agreed in writing. You, not Nsight, remain solely responsible for all User Materials that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services.

Finally, you understand and agree that Nsight, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Materials to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Sharing of your personal data is solely at your own risk. You expressly agree and consent to share your personal data with Nsight, any Provider and any clinician you may engage.

Ownership and Feedback

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, user content, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Nsight’s) rights.

You understand that Nsight owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Services.

To the extent you provide any feedback, suggestions, improvements, enhancements and/or feature requests relating to the Services (“Feedback”) you hereby assign all right, title and interest in and to such Feedback to Nsight, and understand and agree Nsight may use such Feedback for any purpose without any further obligation to you.

The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!

Responsibility for Content

Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such information or Content originated. We cannot guarantee the identity of any users with whom you interact in using the Services, are not responsible for which users gain access to the Services and cannot guarantee the authenticity of any data, information or Content available to you through the Services, including any data other users may provide about themselves. You access all information and Content at your own risk and we are not and will not be liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We are in no way responsible for any content created by any third party including content provided by a Provider.

You are responsible for all Content (including User Materials) that you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You are responsible for all your activity in connection with the Services and you will be solely responsible for any damage or loss to any party resulting therefrom.

Service Restrictions

You represent, warrant, and agree that you will not contribute any Content or User Material or otherwise use the Services or interact with the Services in a manner that:

1. Infringes or violates the intellectual property rights or any other rights of anyone else (including Nsight or a Provider);
2. Violates any law or regulation, including, without limitation, any applicable export control laws;
3. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
4. Jeopardizes the security of your Nsight account or anyone else’s (such as allowing someone else to log in to the Services as you);
5. Attempts, in any manner, to obtain the password, account, or other security information from any other user;
6. Violates the security of any computer network, or cracks any passwords or security encryption codes;
7. Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
8. “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
9. Copies or stores any significant portion of the Content;
10. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

Third Party Interactions

The Services may contain links or connections to third party websites or services that are not owned or controlled by Nsight. When you access third party websites or use third party services, you accept that there are risks in doing so, and that Nsight is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

Nsight has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services, including, but not limited to Providers or clinicians. In addition, although Nsight may monitor or record your usage of such third party sites or interactions, Nsight will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

Your interactions with Providers, clinicians, organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Providers, clinicians, organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Nsight does not recommend or endorse any Providers, clinicians, organizations and/or individuals. You agree that Nsight shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. You also agree that Nsight may but is not required to receive a fee from such Providers, clinicians, organizations and/or individuals as a result of your usage of such third parties’ sites or interactions.

Electronic Communications

When you use our Services, or send emails to us, you are communicating with us electronically. You agree that we may communicate with you electronically. Such electronic communications may consist of e-mail, notices posted on our Services, “push” mobile notification, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this User Agreement.

Release of Claims

To the fullest extent allowed by applicable law, you hereby release Nsight, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of (i) having acquired or not acquired any Content through the Services, or (ii) any disputes with any third party or our Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

Service Fees

Nsight currently only charges the Provider for the services pursuant to an agreed upon Clinic/Provider Treatment Plan, which Provider may in turn be paid by insurance or Medicare/Medicaid, your access to the Services may be contingent upon (1) your maintaining a relationship with a Provider (2) your Provider receiving payment from insurance or Medicare/Medicaid and (3) your Provider maintaining an active service agreement with Nsight. Although your Provider is obligated to pay Nsight regardless of reimbursement, Nsight reserves the right to require payment of fees for certain or all of the Services directly from you if payment is not received. Nsight reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be posted on our websites, sent by via email or postal mail. Use of the Services by you following such notification constitutes your acceptance of any new or increased charges. To the fullest extent allowed by applicable law, all fees paid hereunder are non-refundable unless otherwise permitted by this User Agreement. Nsight is in no way responsible for any liability, damages, fees or expenses arising out of or relating to medical bill reviews and audits by insurance companies or Medicare/Medicaid and you agree to indemnify defend and hold harmless Nsight from such liability, damages, fees or expenses.

Service Termination

Nsight reserves the right to modify, discontinue, terminate or suspend any and all Services without prior notice. In addition, Nsight may terminate or suspend your access to the Services (and/or any feature thereof) or your membership at any time, for any reason, and without warning. You may terminate your use of the Services at any time by following the instructions on the Services. Upon termination of your account for any reason, your right to access and use the Services and any User Materials will immediately cease. Please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you have provided to us after you have stopped using the Services. Provisions that by their nature should survive termination of this User Agreement (for example, indemnification obligations, limitation of liability, disclaimers of warranties, terms regarding ownership or intellectual property rights, and terms relating to disputes between us) shall survive termination.

Miscellaneous

No Medical or Other Professional Advice. Nsight does not offer medical advice or diagnoses, or engage in the practice of medicine. Similarly, the Services are not intended to provide any medical diagnosis or treatment, or serve as a substitute for professional medical advice, diagnosis, treatment, or for any other professional advice of any kind (including without limitation legal or financial advice). You acknowledge and agree that although a Provider may be involved in or related to the medical profession, the provision of the Services through an Access Code does not create a medical professional/patient relationship between you and Nsight or between you and any other individual or entity. If you seek treatment from a medical professional or  clinician you do so as a result of your own choice and decision, after thorough diligence and investigation. Additionally, although Nsight may provide a review of summary of your data to you or a clinician such a review is never a medical diagnosis and in no way shall be considered medical advice or treatment. Such treatment may only be provided by a licensed medical professional and Nsight is not a licensed medical professional. Do not ignore professional advice, or delay in seeking treatment because of anyone or any Content on the Services. Always seek the advice of your physician or other qualified health provider with any questions regarding your health or medical condition. If you think you may have a medical emergency, call your doctor or 911 immediately. Nsight does not recommend or endorse any specific tests, physician, products, procedures, opinions, or other information that may be mentioned on the Services. Reliance on any such information is solely at your own risk.

Warranty Disclaimer. Neither Nsight nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. To the fullest extent allowed by applicable law, we (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Nsight or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY NSIGHT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT NSIGHT IS NOT A HEALTH CARE PROVIDER, THAT THE SERVICES DO NOT CONSTITUTE OR REPLACE MEDICAL ADVICE, AND THAT NSIGHT IS NOT RESPONSIBLE FOR THE RESULTS THAT MAY (OR MAY NOT) BE OBTAINED FROM THE USE OF THE SERVICES. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL NSIGHT (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100; (II) THE AMOUNTS PAID BY YOU TO NSIGHT IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify, defend and hold harmless Nsight, its affiliates, officers, agents, employees, and partners from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), (b) your violation of this User Agreement, and (c) any liability, damages, fees or expenses arising out of or relating to a medical bill review or audits by insurance companies or Medicare/Medicaid. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment. You may not assign, delegate or transfer this User Agreement or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Nsight’s prior written consent. We may transfer, assign, or delegate this User Agreement and our rights and obligations without consent.

Agency. No agency, partnership, joint venture, or employment is created as a result of this User Agreement and you do not have any authority of any kind to bind Nsight in any respect whatsoever.

International Use. The Services are offered by Nsight from its facilities in the United States of America. Nsight makes no representations that the Services are appropriate or available for use in other locations. Users who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local laws. Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export control laws. No software may be downloaded from the Services or otherwise exported or re-exported in violation of the export control laws of the United States.

Choice of Law; Arbitration. This User Agreement is governed by and will be construed under the laws of the State of Florida, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of this User Agreement shall be finally settled in San Francisco County, Florida, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this User Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Dade County, Florida. Any arbitration under this User Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS USER AGREEMENT, YOU AND NSIGHT ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Taxes. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Nsight may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit.

Other. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of this User Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that this User Agreement shall otherwise remain in full force and effect and enforceable. You and Nsight agree that this User Agreement are the complete and exclusive statement of the mutual understanding between you and Nsight, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this User Agreement. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venturer of Nsight, and you do not have any authority of any kind to bind Nsight in any respect whatsoever. You and Nsight agree there are no third party beneficiaries intended under this User Agreement.

SERVICES ADDENDUM (Effective July 1, 2024)

1. SERVICES

The following Services are available from Nsight to each Provider pursuant to this Agreement including its Terms and Conditions below, the Clinic Consent to Services as agreed on Exhibit A, the ACH Authorization on Exhibit B, the Business Associate Agreement on Exhibit C, and the online Terms of Use on the Nsight website www.nsightcare.com, as may be amended from time to time (“TOU”).

You must select the services you wish to receive:

(   ) Remote Patient Monitoring (RPM)

(   ) Chronic Care Management (CCM)

(   ) Principle Care Management (PCM)

(   ) Behavioral Health Integration (BHI)

(   ) Annual Wellness Visits Questionnaire (AWV)

(   ) Device Procurement (DP)

2. PAYMENT METHOD

To access the Services you must pay all amounts due on a monthly basis through one of the following (see Exhibit B):

(   ) Credit card (3% fee applies, must execute authorization)

(   ) ACH transfer (no fee, must execute authorization)

Nsight will provide a billing report to Customer after the close of each month reflecting Services performed by Nsight in that month. Customer may use that report to bill Medicare, Medicaid or other commercial payor for the Services. Nsight will then issue a pre-adjusted invoice at the beginning of the following month for the full amount reflected in the billing report. Within 10 days of transmittal of the pre-adjusted invoice, Customer may contact Nsight to request adjustments for Services performed by Nsight in the previous month that were rejected, denied or partially paid in an amount less than billed by Nsight. Nsight may then waive its fees relating to any unpaid charges in its sole discretion. If Customer does not contact Nsight or if no adjustments are made, payment for the full amount of the pre-adjusted invoice is due at the end of 10 day adjustment period.

If adjustments are made by Nsight then payment for the adjusted amount is still due 10 days after the pre-adjusted invoice date is issued. If any unforeseen delay occurs or timely adjustments are not possible, Customer may request an additional 5 day grace period for adjustment which will be granted at Nsight’s discretion. If late adjustments are requested, Nsight may charge the full pre-adjusted invoice amount and may issue a credit to Customer against future invoices at a later date. Payment is not subject to receiving payment or reimbursement from insurance, including Medicare, Medicaid or any other commercial payor.

Summary

Close of Month – Billing report distributed

Following Month – Pre-adjusted invoice sent, on 1st of the month

10 Day Adjustment Period – Payment due at end of 10 days, on the 10th of the month

Nsight will process payment through the selected payment method on file on the applicable due date. Any failure to make payment after a 15-day period will incur a 5% late charge plus interest at the lesser of 1.5% per month or the highest rate of interest allowed by law.

3. SERVICE TERM

Select One:

(   ) Month to Month– Retail

Month to month unless Customer provides at least 90-days written notice of non-renewal prior to expiration of the current term

(   ) One Year Agreement – 5% Discount

1-year fixed term agreement w/ auto-renewal of 1 year term unless Customer provides at least 90-days written notice of non-renewal prior to expiration of the current term

(   ) Two Year Agreement – 7.5% Discount

2-year fixed term agreement w/ auto-renewal of 2 year term unless Customer provides at least 90-days written notice of non-renewal prior to expiration of the current term

(   ) Three Year Agreement – 10% Discount

3-year fixed term agreement w/ auto-renewal of 3 year term unless Customer provides at least 90-days written notice of non-renewal prior to expiration of the current term

(   ) Five Year Agreement – 15% Discount

5-year fixed term agreement w/ auto-renewal of 4 year term unless Customer provides at least 90-days written notice of non-renewal prior to expiration of the current term

If Customer terminates Services for any reason prior to the completion of the applicable term, Customer will pay Nsight Liquidated Damages equal to 65% of the highest monthly invoice sent to Customer prior to termination multiplied by the number of months left on the applicable agreement term. Customer agrees that this is a reasonable approximation of damages which would be otherwise be difficult to determine and is not a penalty.

All underlying patients are subject to a 90 day minimum.

4. PRICING

Charges are due and payable monthly by Provider at the rates set forth below or as may be modified by Nsight from time to time upon 30 days prior notice, which will be posted on www.nsightcare.com. Fees are due to the extent charges are billable to patients pursuant to the codes set forth below.

All Prices are Subject to discounts based on the length of the Service Term as set forth in Section 3 above.

Device Fees $250 (fees waived per user after 3 months of applicable payments)

G0402 – $100

G0438 – $100

G0439 – $80

99490 – $35

99439 – $30

99453 – $15

99454 – $35

99457 – $30

99458 – $30

99484 – $35

99426 – $35

99427 – $30

5. PATIENT ENROLLMENT

Customer agrees that all patients will be directly enrolled in services by Nsight and the decision to enroll or disenroll will only be made by Nsight after direct contact from each patient by calling 888-270-4225 and not by the Customer. Nsight will not process any disenrollment requests from Customer or Customer’s office staff and Night will only follow its own offboarding process to protect Nsight and the Customer and to make certain the Customer acknowledges and accepts the risks arising from the termination of monitoring. Customer may advise Nsight that a patient is deceased or is ineligible for services due to an insurance claim denial and will provide Nsight with written proof in each instance, but disenrollment is not automatic. Customer agrees that no more than 10% of all Customer patients receiving services may be disenrolled in any given thirty (30) day period, and Customer will continue to pay Nsight directly for any disenrolled services that exceed this percentage based on historic averages, regardless of whether any services are actually provided.

SERVICES ADDENDUM TERMS & CONDITIONS

TERMS & CONDITIONS

1. PRODUCTS & SERVICES

Services List. Customer shall select the products and services Customer wishes to purchase through Nsight when you agree to your Clinic/Provider Treatment Plan with Nsight (“Services”). By selecting a particular product or service, Customer agrees to the relevant terms associated with that product or service set forth herein and in the TOU. Customer understands and agrees that Services require access to Customer’s electronic Healthcare Records (“EHR”) system relating to all patient and other related data (“Customer Data”) and hereby grants Nsight unrestricted access for such purpose.

2. LICENSE & CUSTOMER DATA

a. Application Software. Nsight will provide access to the Software to Customer and its Authorized Users. Customer and its Authorized Users may access and use the Software (a) only in accordance with the relevant Terms of Use and any other supporting Documentation provided by Nsight, (b) to upload and/or transmit Customer Data by and through the Software; and (c) to access and use reports generated from time to time by Nsight.

b. Customer Data. Customer hereby grants to Nsight, its subcontractors and vendors  a limited, non-exclusive, royalty-free, worldwide license (the “License”) to:

i. Use, reproduce, aggregate and modify the Customer Data and to perform all acts with respect to the Customer Data as may be necessary for Nsight to provide the Services to Customer; and

ii. Use or modify the Customer Data for the purposes of creating De-identified Data from PII and PHI contained in the Customer Data. Nsight intends to use De-identified Data, aggregated with the de-identified data of other Nsight customers, to enable Nsight to provide more targeted, accurate, and useful insights to its customers.  Nsight represents and warrants that any aggregated data is De-Identified in accordance with HIPAA and any other applicable laws.

iii. Access Customer’s EHR upon commencement of the Services and from time to time at Nsight’s discretion to support the Services and to find additional Patient Users who may be eligible to receive the Services. Nsight may review Customer Data at any time from Customer’s EHR to check patient eligibility, then directly contact such patients to attempt to enroll such patients. Customer directs Nsight to contact all eligible patients and has determined that all eligible patients have a clinical need for the Services. Nsight is authorized to  call, email, and/or text message eligible patients on an ongoing basis to enroll them into the Services.

iv. Customer Data will be included in and treated as Customer’s Confidential Information under this Agreement.

c. Intellectual Property. Except as otherwise set forth in this Agreement, all inventions, works of authorship, and developments conceived, created, written, or generated by or on behalf of Nsight, its subcontractors, vendors, licensors and providers whether solely or jointly, including without limitation, in connection with the Software hereunder (“Nsight Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Nsight or its subcontractors, vendors, licensors and providers as applicable.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Nsight may reasonably request, to perfect ownership of the Nsight Developments. Customer shall not re-distribute the Software or the Devices other than as specifically provided for in this Agreement.

3. CUSTOMER RESPONSIBILITIES

a. TOU. Customer shall require its underlying patients to review and accept the Nsight TOU, as updated by Nsight from time to time, prior to accessing the Services. Customer shall abide by and Customer shall require its patients to abide by the TOU.

b. Patient Copays and Deductibles. Customer is responsible for collecting from a Participating patient any applicable patient copays or deductible amount as required by any health insurance plan, whether commercial or government sponsored.

c. Get Paid First Guarantee. Nsight will guarantee the Customer is only charged a fee on paid CPT codes, so long as, a collection report is sent to Nsight by Customer prior to the 10th of the month each month. Failure by the Customer to adhere to submitting a collection report by the 10th will result in payment being processed by Nsight. However, if the collection report is submitted late by the Customer then Nsight will issue credits to Customer on their next month’s invoice.

d. Growth Guarantee. Nsight will guarantee to refund the Customer their first month’s invoice if Nsight is unable to gain verbal consent from at least 50% of the eligible patient population. The Customer must agree to allow Nsight to perform the initial enrollment campaign on all eligible patients from the Customer patient population.

4. PAYMENTS

a. Fees. As compensation for the Services Customer shall pay the Fees for those services as selected in your Clinic/Provider Treatment Plan.

b. Payment.

i.Nsight shall invoice Customer for fees owed to Nsight as set forth above

ii.Customer shall pay Nsight directly or a factoring entity identified by Nsight for invoiced amounts as directed by Nsight in writing.

iii.If Customer disputes any fees, it must still pay all shall pay all undisputed fees when due.

c. Currency. All amounts set forth in this Agreement are denominated and shall be paid in U.S. dollars.

d. Overdue Payments. Any payment owed by Customer to Nsight hereunder and not timely paid to Nsight (an “Overdue Payment”) may accrue, at Nsight’s discretion, late charges of 5% of the amount due plus interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If there are payments outstanding for more than one (1) day and such payments have not been disputed in good faith, Nsight will provide a fifteen (15) day grace period to  cure. If, after the fifteen (15) day cure period, payments remain overdue, the late fee shall apply and Nsight reserves the right to suspend patient access to the Services until such amounts are paid in full. Customer shall continue to be obligated to pay all fees during such suspension period.

e. Disputed Payments. Customer must indicate that they are disputing any fees or expenses, in writing, to Nsight within ten (10) business days of receipt of the invoice specifying such fees or expenses (a “Dispute Notice”). In the event Customer disputes any fees or expenses owed pursuant to this Agreement and withholds payment, Nsight and Customer agree to attempt to resolve such dispute through informal meetings and discussions in good faith between appropriate representatives of the Parties within ten (10) days of receipt of the Dispute Notice before resorting to any other dispute resolution procedure. If Customer has received payment from Medicare or another provider arising out of any services performed by Nsight, Customer agrees the amount of all such payments will be held in a third party independent escrow with an agent appointed by Nsight pending resolution of any dispute and that Nsight is hereby granted a security interest in such payments until any dispute is resolved or such interest is released by Nsight.

f. Taxes.  All amounts payable by Customer to Nsight pursuant to this Agreement are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to Nsight are payable in full without reduction for Taxes. Customer is responsible for payment of all Taxes, excluding taxes owed by Nsight based on Nsight’s net income.  If Nsight has the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Nsight with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. PROPRIETARY RIGHTS

a. Nsight Intellectual Property.  As between Nsight and Customer, all right, title and interest, including all Intellectual Property Rights, in the Software, Nsight Data, and any other Nsight property or materials furnished or made available hereunder, and all modifications and enhancements thereof, belong to and are retained solely by Nsight or Nsight’s subcontractors, vendors, licensors and providers, as applicable.

b. Trademarks.  Nothing in this Agreement shall grant any party any ownership interest, license or other right to any other party’s trade names, trademarks or service marks, except as expressly provided herein.

c. Customer Data.  As between Nsight and Customer, all right, title and interest in the Customer Data belong to and are retained solely by Customer.

d. Feedback and Contact Information License.  Nsight owns all right, title and interest in and to any suggestion, enhancement, request, recommendation, or other feedback related to the Software provided by Customer (any “Feedback”).  Feedback shall not be considered Customer’s Confidential Information pursuant to this Agreement. You also grant Nsight a License during the Term to mimic the Caller ID of Customer in all communications with Customer’s patients so that all patient questions will be sent directly to Customer for medical treatment and referral, not to Nsight which is unable to give any medical treatment or advice. The sole purpose is provide for the medical care of each such patient not to defraud, cause harm, or wrongfully obtain anything of value from the patient.

e. De-identified Data. Nsight may use PII and PHI (a subset of Customer Data) to create De-identified Data. Nsight may use, create, modify, aggregate, and disclose De-identified Data for any purposes not prohibited by law.  Nsight owns all rights, title and interest in such De-identified Data and any data, information and material created by Nsight with such De-identified Data, including all Intellectual Property Rights therein. De-identified Data is NOT Customer Data. For the avoidance of doubt, the second and third sentences of this Section shall survive the expiration or earlier termination of this Agreement.

6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

a. Mutual Representations and Warranties.  Each Party represents, warrants and covenants that such Party has conducted reasonable inquiry and based thereon is informed and believes that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; (b) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust; and (c) it will comply with any and all applicable local, state, and/or national laws or regulations applicable to such party, including, without limitation, those related to PHI, Covered Entities, and Business Associates as each term is defined under HIPAA, and to any other laws or regulations regarding data privacy and transmission of personal data.

b. Practice of Medicine. CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT NSIGHT ITS SUBCONTRACTORS, VENDORS, LICENSORS AND PROVIDERS, AS APPLICABLE ARE IN NO WAY ACTING AS A MEDICAL PROVIDER WITH RESPECT TO ANY PATIENT OR ANY OF CUSTOMER’S RELATED PARTIES AND PROVIDERS, NOR IS NSIGHT PROVIDING 24/7 CONTINUOUS, SYNCHRONOUS, OR EMERGENCY ALERTING. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE TREATMENTS, PROCEDURES, WORKFLOW, INFORMATION, MEDICATIONS, PROCESSES, PRODUCTS AND OTHER ITEMS REFERENCED BY NSIGHT OR ITS SOFTWARE ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, PROCEDURE, INFORMATION, PRODUCT OR MEDICATION AND THAT THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH THE PHYSICIANS TREATING SUCH PATIENT.

c. Disclaimer.   THE SERVICES ARE PROVIDED ON AN AS-IS BASIS.  CUSTOMER AND PATIENT USE IS AT ITS OWN RISK.  NSIGHT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.   THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NSIGHT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY INFORMATION, DATA, PRODUCTS, PROCESSES, AND OTHER MATTERS REFERENCED BY THE SERVICES REMAINS WITH THE CUSTOMER.  NSIGHT DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO THE SERVICES.

d. Basis of the Bargain. CUSTOMER ACKNOWLEDGES AND AGREES THAT NSIGHT HAS OFFERED ITS SERVICES AND ENTERED INTO THIS AGREEMENT TO WHICH IT IS A PARTY IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN CUSTOMER AND NSIGHT, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND NSIGHT. CUSTOMER ACKNOWLEDGES AND AGREES THAT NSIGHT WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO CUSTOMER ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

7. CONFIDENTIALITY

a. Confidential Information Defined. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure and/or receipt ought to be treated as confidential and proprietary information, including but not limited to:  (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatuses, formulae, equipment, algorithms, software programs, software source and object codes and documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) the business relationships and affairs of either party and its clients, patients, and referral sources; (d) the internal policies and procedures of either Party; I proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (f) the terms of this Agreement. Nsight’s Confidential Information includes the Software and Nsight Data.  Confidential Information of Customer includes Customer Data.  Confidential Information also includes all summaries and abstracts of Confidential Information. In addition, Confidential Information excludes PHI, which must be protected according to any Business Associate Agreement between the parties.

b. Confidential Information Terms. Each Party acknowledges that, in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party.  The Receiving Party will, at all times, both during the term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information.  The Receiving Party will not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement.  Notwithstanding the above, either Party may disclose the other Party’s Confidential Information upon the order of any competent court or government agency; provided that, prior to disclosure, to the extent possible, the receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section 9.  The Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

c. Exceptions.  The term “Confidential Information” shall not include any information which:  (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party, as evidenced by Receiving Party’s written records; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, as evidenced by Receiving Party’s written records; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.

d. Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damage.

e. HIPAA Compliance.  Each Party, to the extent applicable, will comply with laws and regulations applicable to the privacy and security of individually identifiable health information, including but not limited to state laws and regulations and the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and/or regulations promulgated thereunder (“HIPAA Regulations”).  State law, HIPAA, HITECH, HIPAA Regulations and other federal laws and regulations are hereafter referred to collectively as “Privacy Laws”.  The Business Associate Agreement executed between the Parties, is hereby incorporated by reference, further describes the parties’ obligations with respect to compliance with HIPAA, HITECH, and HIPAA Regulations, and is hereby incorporated into this Agreement by reference.

f. Security. Each of Customer’s Authorized Users authorized will create a unique user login and passwords to be used to access and use the Software.  Customer will be, and will ensure that its Authorized Users are, responsible for maintaining the confidentiality of all User logins and passwords and for ensuring that each User login and password is used only by the Authorized User to which it was issued.  Customer shall restrict its Authorized Users from sharing passwords.  Customer agrees to immediately notify Nsight of any unauthorized use of any account or login and password issued to its Authorized Users, or any other breach of security known to Customer.  Nsight will have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.  Customer will ensure its Authorized Users do not circumvent or otherwise interfere with any user authentication or security of the Software.

8. INDEMNIFICATION

a. Indemnification by Customer. Customer shall indemnify and hold harmless Nsight and its officers, directors, employees, agents subcontractors, vendors, licensors and providers, as applicable (“Nsight Indemnified Parties”), from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including reasonable attorneys’ fees and expenses) (“Losses”), arising, directly or indirectly, out of or relating to any claim, action or proceeding (a “Claim”) brought by a third party based on: (i) the improper use or operation of the Services by Customer or patients, including, without limitation, any non-authorized use of user logins, provided, however, that Customer shall have no indemnification obligation for any claim for which the sole proximate cause was the gross negligence or willful misconduct of Nsight; (ii) a breach of the Agreement or the TOU by Customer or any of its patients, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of Customer Data or any other content or data of Customer or patients; (iv) violation of any applicable law, rule or regulation by Customer or any patients, (v) the diagnosis and/or treatment of any of Customer’s patients; and/or (vi) the negligent acts or willful misconduct of Customer or its personnel.  Customer will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the Nsight Indemnified Parties from any such Claim.

b. Indemnification by Nsight. Subject to limitations of liability as set forth in Section 10, Nsight agrees to or require that its subcontractors, vendors, licensors and providers, as applicable defend Customer and its officers, directors, employees and agents (a “Customer Indemnified Party”) from and against any Claims brought by a third party resulting from or arising out of (i) a successful claim that the Software infringes or misappropriates the patent, trade secret, trademark, copyright or other Intellectual Property Rights of any third party (an “Infringement Claim”). In the event of an Infringement Claim, Nsight may, at its or its subcontractors, vendors, licensors and providers, as applicable election, and expense, (i) modify the Services to be non-infringing and functionally equivalent; or (ii) obtain the right for Customer and Customer’s patients to continue using the Software at no additional cost to Customer. If none of the foregoing is commercially practicable, Nsight may terminate this Agreement.

c. Procedure. Each Party shall provide to the other Party prompt notice of any Claim for which they are seeking indemnification.  The indemnified Party may have counsel reasonably acceptable to the indemnifying party observe the proceedings at the indemnified party’s expense, provided the indemnifying party retains sole control of the defense of the Claim.  The indemnified party has the right to approve any settlement that affirmatively places on the indemnified party an obligation that has a material adverse effect on the indemnified party other than requiring the indemnified party to cease using the Services or to pay sums indemnified hereunder.  Such approval shall not be unreasonably withheld.

9. LIMITATIONS OF LIABILITY

a. No Consequential Damages.  NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF NSIGHT’S PROVISION OR CUSTOMER’S USE OF THE SOFTWARE OR THE RESULTS THEREOF.  IN NO EVENT WILL NSIGHT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

b. Limits on Liability.  NSIGHT SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO NSIGHT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

c. Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION (LIMITATION OF LIABILITY) ARE A BARGAINED FOR REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND (B) EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

d. Limitation of Action.  No action (regardless of form) arising out of this Agreement may be commenced by Customer against Nsight more than two (2) years after the cause of action arose.

10. TERMINATION

a.           Termination For Convenience: This Agreement may be terminated by Nsight for any other reason Nsight feels could reasonably jeopardize the integrity or reputation of its operations or systems or without cause after thirty (30) days’ notice.

b. Termination For Cause. Either Party may terminate this Agreement following a material breach of this Agreement by the other Party which is not cured during the Cure Period. The non-breaching Party shall notify the breaching Party of the breach in writing and the breaching party shall have thirty (30) days (the “Cure Period”) to cure the breach following receipt of the notification. If the breaching Party fails to cure the breach within the Cure Period, then the non-breaching Party may terminate this Agreement upon written notice to the breaching party.

B. Other Cause. Nsight may terminate this Agreement immediately by providing written notice to Customer upon the occurrence of any of the following events:

i. Nsight reasonably determines that Customer and/or its Authorized User(s) have been or are engaged in unlawful activity associated with the use of the Software and/or the Services;

ii. The indictment or conviction of Customer or its principals, employees, or agents for any felony or misdemeanor involving moral turpitude;

iii. The filing, with respect to Customer, of a voluntary or involuntary petition in bankruptcy if such petition is not dismissed within thirty (30) days of such filing;

iv. Upon the appointment of a receiver or trustee to take possession of all, or substantially all, of Customer’s assets, if such appointment is not terminated within thirty (30) days;

C. Effect of Termination.

I. Unless otherwise stated below, upon expiration or termination of this Agreement for any reason, (a) the License shall terminate and the Customer shall not use or access, directly or indirectly, the Software; (b) Nsight’s obligation to perform support services shall cease; and (c) all fees and other amounts owed to Nsight will be immediately due and payable by Customer up through the effective date of termination for any support services completed.

ii. If Customer has made any copies of any Nsight property or materials furnished or made available hereunder, including without limitation the Software, Customer shall either destroy or return to Nsight all such copies along with a certificate signed by Customer that all such copies have been either destroyed or returned, respectively, and that no copy or any part of the aforementioned software, data or materials has been retained by Customer in any form.

iii. Within thirty (30) days after the effective date of applicable termination or expiration, Nsight will make any Customer Data stored on the Software available upon written request to Customer in its native form.

Iv, Upon any termination For Cause by Nsight, Customer will pay any unpaid fees earned up to the effective date of termination.  In no event will any termination relieve Customer of the obligation to pay any fees payable to Nsight for the period prior to the effective date of termination.

v. Upon termination without cause by Nsight, or termination For Cause by Customer, Customer shall be entitled to a refund of any fees pre-paid but unearned as of the effective date of termination.

11. MISCELLANEOUS

a. Insurance. Customer shall maintain, at its own expense and in the minimum amounts specified herein;

i. Professional Errors & Omissions insurance with limits of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in aggregate.

ii. Commercial General Liability insurance with limits of Two Million Dollars ($2,000,000) per occurrence and Two Million Dollars ($2,000,000) in aggregate.

iii. Cyber liability insurance with limits of Three Million Dollars ($3,000,000) per occurrence and Three Million Dollars ($3,000,000) in aggregate.

b. Subcontractors.  Nsight may use its licensors, providers, subcontractors, vendors and affiliates to perform its obligations hereunder.

c. Notices.  Any notices, requests, consents, demands or other communications required or permitted under this Agreement will be in writing and deemed to have been duly given either: (a) when delivered, if delivered by hand, sent by United States registered or certified mail (return receipt requested), delivered personally by commercial courier, or (b) on the second following business day, if sent by United States Express Mail or a nationally recognized commercial overnight courier; and in each case to the parties at the following addresses (or at other addresses as specified by a notice) with applicable postage or delivery charges prepaid. Notices to Nsight shall be sent to the following address: Nsight, 382 NE 191ST St., Suite 17537, Miami, FL 33179. Notices to Customer shall be sent to the address specified in your Clinic/Provider Treatment Plan.

d. Amendment.  Except as may otherwise be specified in this Agreement, this Agreement may be modified, changed or amended only by a dated written instrument executed by a duly authorized person of each party.

e. Waiver; Severability. The failure of any Party to insist in any one or more instances upon performance of any term of this Agreement will not be construed as a waiver of future performance of the term, and the Party’s obligations for the term will continue in full force and effect. The provisions of this Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of this entire Agreement in that jurisdiction.

f. Governing Law. This Agreement and each Party’s rights and obligations under it will be governed by and construed in accordance with the laws of the State of Florida without giving effect to conflicts of law principles.

g. Assignment. Neither Party may assign or transfer this Agreement without the prior written consent of the other Party; provided, however, that Nsight may assign or transfer this Agreement, without Customer’s consent, to any of Nsight’s affiliates, subsidiaries, entities controlled by or under common control with Nsight, or in the event of a merger, change of control or sale of substantially all of its assets.  This Agreement will bind the Parties and their respective successors and assigns and will insure to the benefit of the Parties and their respective permitted successors and assigns.

h. Force Majeure. If any Party is unable to perform any of its obligations under this Agreement (other than payment obligations) because of any cause beyond the reasonable control of and not the fault of the Party invoking this section, including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection or material unavailability, and if the non-performing Party has been unable to avoid or overcome its effects through the exercise of commercially reasonable efforts, such non-performing Party will give prompt notice to the other Party, its performance will be excused, and the time for its performance will be extended for the period of delay or inability to perform due to such occurrences.  If performance is extended under this section for more than sixty (60) days, then at any time before reinstatement of the performance, the other Party may terminate this Agreement upon notice to the non-performing Party.

i. Relationship of the Parties. The sole relationship between the Parties is that of independent contractors. This Agreement will not create a joint venture, partnership, agency, employment or other relationship between the Parties. Nothing in this Agreement will be construed to create any rights or obligations except among the Parties; and no person or entity will be regarded as a third-party beneficiary of this Agreement, except as otherwise provided in this Agreement.

j. Survival. Any term of this Agreement that contemplates performance after termination of this Agreement will survive expiration or termination and continue until fully satisfied.

k. Dispute Resolution. In case of disputes in connection with the negotiation, execution, interpretation, performance or non-performance of this Agreement, the Parties agree to seek non-binding mediation, which shall be conducted remotely by a single mediator selected by the Parties. If the Parties fail to agree on the mediator within thirty (30) days of the date one of them invokes this mediation provision, either Party may apply to the American Arbitration Association to make the appointment. The mediator shall conduct the proceedings pursuant to the rules of the American Arbitration Association, as now or hereafter amended. In the event that any such mediation does not produce a settlement, unless the dispute is otherwise settled, the dispute shall be determined by binding and final arbitration in Dade County Florida by one (1) arbitrator selected by the Parties (or by the American Arbitration Association if the Parties cannot agree) in accordance with the law of the State of Florida and the rules of the American Arbitration Association.

L. Entire Agreement. This Agreement, including the Terms of Use, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

m. Counterparts.  This Agreement may be executed in one or more counterparts.  Each counterpart will be an original, but all such counterparts will constitute a single instrument.

n. Texting/SMS. The following applies to your use of texting/SMS with us:

i. By texting a keyword to short code 37354, you consent to receive one or more automated texts at the phone number from which you texted.

ii. We will not be liable for any delays in the receipt of any SMS messages as delivery is subject to effective transmission from your mobile service operator. SMS MESSAGE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, AND ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED.

iii. Data obtained from you in connection with this SMS service may include your cell phone number, your carrier’s name, and the date, time and content of your messages, as well as other information that you provide. We may use this information to contact you and to provide the services you request from us.

iv. By subscribing, you consent to receive text messages including alerts and updates. Up to 4 messages per month.

v. By subscribing or otherwise using the service, you acknowledge and agree that we will have the right to change and/or terminate the service at any time, with or without cause and/or advance notice.

vi. To cancel your SMS subscriptions, text STOP to 37354  in reply to a text message you receive. You may receive a subsequent message confirming your opt-out request. For additional help, text HELP to 37354  in reply to a text message you receive.

vii. Message and Data Rates May Apply. T-Mobile® or any other carrier is not liable for delayed or undelivered messages. United States Participating Carriers Include AT&T, T-Mobile®, Verizon Wireless, Sprint, Boost, U.S. Cellular®, MetroPCS®, InterOp, Cellcom, C Spire Wireless, Cricket, Virgin Mobile and others.

viii. Program Availability: Currently, the Program is only available to residents of the United States. You understand and acknowledge that you may not sign up for, access, or attempt to access or use the Program from countries outside of the U.S. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.

ix. Questions / Support: You can contact us at support@nsightcare.com at any time, from your mobile phone, send a text message with the word “HELP” to 37354. You may also call our support line: 1-888-270-4225

o. Books and Records.  Each party shall make available, upon written request to the Secretary of Health and Human Services, or upon request to the Comptroller General, or any of their duly authorized representatives, a copy of this Agreement and such books, documents and records as are necessary to certify the nature and extent of the costs of providing the Services.  Such access shall be available for up to four (4) years after the rendering of the Services.  If a party carries out any of the duties of this Agreement through a subcontract with a value of $10,000 or more over a twelve (12) month period with a related individual or organization, such party agrees to include this provision in any such subcontract.  This provision is included pursuant to and is governed by the requirements of 42 U.S.C. Section 1395x(v)(1) and the regulations thereto. The provisions of this Section shall survive expiration or termination of this Agreement, regardless of the cause of such termination.

p. Compliance with Laws. Nsight and Customer shall at all times during the Term comply with and observe all applicable local, state and federal laws, rules and regulations that in any way apply to its business. The Parties enter into this Agreement with the intent of conducting their relationship and implementing the terms of this Agreement in full compliance with applicable federal, state and local law, including without limitation, Section 1128B of the Social Security Act (the “Anti-Kickback Statute”) and Section 1877 of the Social Security Act (the “Stark Law”), as amended. Notwithstanding any unanticipated effect of any of the provisions of this Agreement, neither party will intentionally conduct itself under the terms of this Agreement in a manner that would constitute a violation of the Anti-Kickback Statute or the Stark Law or any similar State law, rule or regulation.

q. Change in Laws. In the event any state or federal laws or regulations, now existing or enacted or promulgated after the date of this Agreement, are interpreted by judicial decision, a regulatory agency or legal counsel in such a manner as to indicate that the structure or any provision of this Agreement may be in violation of such laws or regulations, Customer and Nsight shall amend this Agreement as necessary to be in compliance with such laws or regulations.  To the maximum extent possible, any such amendment shall preserve the underlying economic and financial arrangements between the parties.  If the parties fail to reach an agreement satisfactory to both parties within ninety (90) days after the receipt of the request for renegotiation by a party, the matter shall be submitted to binding arbitration in accordance with this Agreement.

r. Exclusive. Customer agrees that Nsight shall be its exclusive provider of RPM, CCM, PCM, AWV, and BHI services and solutions during the Term of this Agreement.

s. Non-Solicitation.  (a) Neither Party, without the prior written consent of the other Party (the “Original Employer”), shall solicit, induce, or attempt to solicit or induce any employee of the Original Employer to become an employee or contractor of the soliciting or inducing Party during the term of this Agreement. (b) Notwithstanding the above, nothing in this Section is intended or shall be construed to prevent (i) hiring former employees of the other party who were not solicited during their employment; (ii) with prior notice to the other Party, either Party from hiring employees of the other Party that have not been solicited; (iii) either Party from soliciting or hiring any employees of the other Party in the event of the other Party’s insolvency, bankruptcy, receivership, or any other cessation of business; or (iv) either Party from hiring employees of the other Party responding to a general solicitation for application for employment made through advertising not involving the direct solicitation of a specific person.

EXHIBIT A

CLINIC CONSENT TO SERVICES

Customer agrees, understands and acknowledges the following:

1. Customer will have Nsight Health, Inc. (“Nsight”) mimic its caller-ID for the purpose of contacting  patients on its behalf.

2. Customer will inform its staff of Nsight’s services and patient outreach/phone calls prior to Nsight beginning services so that enrollment calls are successful and will ensure all staff attends the “Nsight Kick-off Call” prior to calls commencing.

3. Customer will make all providers aware of the Nsight program and if any providers are not aware, will inform them of Nsight’s services and if necessary, schedule a meeting with the Nsight sales team after signing this document to educate all providers how the program will work.

4. Customer will encourage patients that have received a device, based on an order, to continue participating and will ensure to the best of its ability that its staff is trained to do the same.

5. If Customer discontinues services for any reason it will provide the longer of 90-days written notice or the minimum notice required by written agreement and will assist Nsight as requested get its devices back from patients.

6. RPM code 99454 is billable for 16 days of readings or programmed alerts within 30-day periods and those 16 days can be met by a combination of days with readings or alerts, and in some cases only alerts. In addition, Customer agrees it will not hold any claims for payment, under any circumstances as it relates to this subject.

7. RPM codes 99457 and 99458 are billable, even when a patient doesn’t answer the phone, so long as interactive communication is conducted with the patient. Since interactive communication is defined as “an exchange of ideas where participates, whether human, machine or art form, are active and can have an effect on one another” Nsight recognizes alerts, text messages, voicemails, and readings as a form of interactive communication to meet this requirement. In addition, Customer agrees it will not hold any claims for payment, under any circumstances as it relates to this subject.

8. Customer patients may be billed for CCM time when a patient call has not occurred due to the many circumstances in which clinical time is needed to build care plans and other required work after the patient has consented to services and excess RPM clinical time, such as chart reviews, and ongoing patient interactive communication can and will be used towards accumulating CCM clinical time should RPM time exceed 60 minutes.

9. Since it would be impossible for Nsight to contact every eligible patient and not receive questions, concerns and in some cases, complaints, Customer understands there will be a certain amount of feedback which may be negative.  Customer understands that the majority of concerns will be communicated during enrollment, and again when patients receive their first co-pay or deductible. Customer understands these concerns will be temporary, and that after a few months, patient concerns will likely be limited.

10. Customer agrees that should a patient complain about Nsight, that its staff will email support@nightcare.com and provide the patient’s information so that Nsight may research the issue, and provide a call recording in return to show that 99% of patient complaints are not accurately communicated. Any errors or issues Nsight recognizes will be quickly resolved by Nsight and communicated back to Customer in a timely manner.

11. Customer will immediately notify Nsight through proper communication channels when a patient tells Customer they no longer want to be enrolled, when they return a device to the clinic or if  find out a patient is deceased so that Nsight can remove the patient from the services and the billing files at its discretion.

12. Customer is  responsible for timely billing of the claims within 48 hours of receiving the billing file from Nsight and Customer is responsible for the timely submission of a payment report by the 8th of every month when an invoice is due from Nsight.

13. Customer has made a clinical determination that all eligible patients may benefit from Nsight’s services and therefore Nsight may access Customer’s electronic healthcare records (“EHR”) to determine which patients may be eligible for services and directs Nsight to contact such eligible patients for enrollment purposes.

14. Customer understands that Nsight is making a large financial investment and therefore agrees that Customer does not intend to sell the practice or have a principal retire within the next 12 months.

15. Customer understand that billing claims timely and maintaining an effective billing process is important to making the relationship with Nsight work. Customer agrees not to change its internal or external billing operation within the next 12 months. If operations are changed after the first 12 months, Customer agrees to ensure that the new billing operation will not forget to bill claims on time and will continue to provide a collection report to Nsight on a monthly basis.

16. Customer will ensure its billing department is equipped to handle billing additional claims and agrees Customer will provide Nsight a collection report by the 8th of each month in order for a successful reconciliation prior to my account being deducted on the 10th of each month. Should a collection report not be provided to Nsight by the 9th, Customer agrees to have payment deducted by Nsight and that any collection reports turned in on or after the 10th of the month will result in a credit to the following invoice. Customer agree there are no exceptions to this policy, no matter what circumstance exist.

17. Customer is not a rural health clinic (RHC) or federally qualified health center (FQHC).

18. Customer agrees that its profit margin expectations relating to Nsight services will be realistic and understands it will vary based on the locality and on how many patients do or do not have secondary insurance, in addition to other factors. Customer understands that the average Nsight customer’s profit margin varies between 20-40% and, as long as, Customer’s profit is within this range, that Customer will not threaten cancellation or use this as a reason to withhold claims, payment or cancel with Nsight.

19. Customer agrees that it will take three full months to realize any profit margin and it will not renegotiate fees, hold claims, or withhold billing for any reason. During the fourth month of service, if Customer provides a collection report to Nsight for each prior month, Nsight will send a profit analysis showing the Customer’s profit margin for Nsight services in the third month which may help forecast future profit margins.

20. I agree and understand that Nsight will receive more revenue than Customer for this program because Nsight is conducting 95% of the work for the program to operate. These costs include, but are not limited to; 24/7/365 nurses, devices, cellular connectivity fees, software, EHR integrations, insurance, compliance, legal, management, quality assurance representatives, enrollment specialists, onboarding specialists, adherence specialists, customer success managers, account managers, billers, ongoing training, text message campaigns, letter campaigns, posters, brochures, etc.

21. Customer understand that if it wants a discounted rate for Nsight’s fees, it must sign a 1-to-5-year agreement depending on how large a discount it seeks.

22. Customer understands that because this is a remote service, unlike an in-person visit, that billing discrepancies can and will occur from time-to-time including, but not limited to: The billing of a deceased patient, billing a patient who’s insurance has changed and no longer covers the service, etc.

23. Customer understands and agrees all patients will be kept on Nsight’s services until a patient communicates otherwise. So long as the patient has provided recorded verbal consent, Nsight will continue to service the patient and continue attempts to contact them if they are unresponsive. This may result in billable clinical time, which will be documented, and therefore must be billed.

24. Customer agrees that it cannot, and will not, decide to not bill claims for any reason as it is agreeing to the billing and clinical practices of Nsight. If Customer does not bill all claims, this would immediately be considered termination of Nsight’s services.

25. Customer will never hold claims or payment from Nsight in an effort to renegotiate fees or resolve an outstanding issue and that by signing an ACH or CC authorization form, Customer agrees to Nsight may directly deduct payment for the services provided.

26. Should Customer’s payment method no longer be active or expired, Customer will immediately communicate with Nsight and provide an updated payment method for future use.