Provider Portal Terms of Service

2. ABOUT THE SERVICE

a. The Service is a centralized portal for health care providers to manage and access patient test requests and results.

b. Some of the data, advice, information and materials available on the Service are not provided by us. We are not in any way responsible such third-party data, advice, information, or materials. You must use your independent judgment to assess the accuracy, reliability, and medical appropriateness of such data, advice, information, or materials.

We may modify the features and functionality of the Service at any time. If a modification meaningfully reduces performance of the Service, we will use reasonable efforts to notify you (by, for example, sending an email to the billing contact you designate in Your Account, through your account or in the Service itself).

3. USER ACCOUNT

To access and use any features of the Service, you are required to login into your account (“Your Account”). You must provide true, accurate, current and complete information, and you agree to update the account information in order to ensure that it is current.

As a condition of being permitted to open a User Account, you represent that you (i) have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside, (ii) are not on a list of persons barred you from receiving services under U.S. laws (including, without limitation, the Denied Persons List and the Entity List issued by the U.S. Department of Commerce, Bureau of Industry and Security) or other applicable jurisdiction and (iii) are not a resident of Cuba, Iran, North Korea, Sudan or Syria.

You are responsible for maintaining the confidentiality of your passwords and for all of your activities and those of any third party that occur through your User Account, whether or not authorized by you. You agree to immediately notify us of any suspected or actual unauthorized use of your User Account. You agree that we will not under any circumstances be liable for any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your passwords.

4. TERMS APPLICABLE TO THE SITE AND THE SERVICE

a. Access to the Service. Upon registration and opening of a User Account, we will make the Service available to you, solely for your own internal business purposes, until such time as either you or we elect to terminate such right in accordance with these Terms of Service.

b. Support. We will, at no additional charge, provide standard customer support for the Service, and upgraded support, if purchased. We will make commercially reasonable efforts to keep the Service available 24 hours a day, 7 days a week, except during our planned downtime or interruptions caused by circumstances beyond our reasonable control, such as a force majeure event. We reserve any and all rights not expressly granted to you pursuant to these Terms of Service. The limited rights granted to you to use the Service comprise a limited license and do not constitute the sale of any software program.

c. Use of the Service. You are responsible for providing the device, service plan, software, Internet connections and/or other equipment or services that you need to download, install and/or use the Service or Site. WE DO NOT GUARANTEE THAT THE SERVICE OR THE SITE CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE. WE DO NOT GUARANTEE THAT THE SERVICE OF THE SITE WILL BE AVAILABLE IN ANY PARTICULAR GEOGRAPHIC LOCATION. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST, OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE SITE OR THE SERVICE ON YOUR DEVICE.

You agree to receive marketing messages, related information, and other electronic communications from us via text message, phone call, email and any other means of communication available based on the information you provided. Use of an automatic telephone dialing system may be used to deliver text messages. Standard data and message rates may apply.

d. Use Restrictions.[A1] [A2]

(1) You agree that: (i) you will not use the Service or Site if you are not fully able and legally competent to agree to these Terms of Service; (ii) you will only use the Site or Service for lawful purposes; (iii) you will not use the Site or Service for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct; (iv) you will not use the Site or Service to advertise, solicit or transmit commercial advertisements, including “spam”; (v) you will not use the Service or Site to cause nuisance, annoyance or inconvenience; (vi) you will not impair the proper operation of the Service or Site; (vii) you will not try to harm the Service or Site in any way whatsoever; (viii) you will not copy, or distribute the Service or Site or other content without written permission from us; (ix) you will only use the Service for your internal operations and will not resell it to a third party or otherwise use it for commercial purposes; and (x) you will keep secure and confidential your account password or any identification we provide you which allows access to the Service.

(2) You agree to protect the Service and Site, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Service, Site, or such proprietary content, information, or other materials except as authorized in writing by us. You agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Service or Site in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (ii) use the Service or Site in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Site or the Service, in whole or in part, in any form or manner or by any means; (iv) harvest or scrape any content or data from the Service or Site, or (v) permit any third party to engage in any of the acts described in clauses (i) through (iv).

(3) You further understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Service or Site; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Service or Site in whole or in part; (iii) use any means to discover the source code of any portion of the Service; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Service or Site. Any attempt to do any of the foregoing is a violation of our and our licensors’ rights. If you breach these restrictions, you may be subject to prosecution and damages.You further agree not to use the Service or Site in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Service or Site.

(4) The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send us a written notice by mail or by e-mail requesting that we remove such material or block access to it. If you believe in good faith that someone has wrongly submitted a notice of copyright infringement to us involving content that you made available through the Site, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA.

(5) We, and our licensors, reserve the right to change, suspend, remove, or disable access to the Service or Site at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Service or Site. We may also impose limits on the use of or access to the Service or Site, in any case and without notice or liability.

You agree to protect our Confidential Information from unauthorized use, access or disclose in the same manner as you would use to protect your own Confidential Information, but no with no less than a reasonable degree of care. Except as otherwise expressly permitted pursuant to these Terms of Service, we may use your Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms of Service and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section will control over any non-disclosure agreement by and between the you and us and any such non-disclosure agreement will have no further force or effect with respect to the exchange of Confidential Information after the execution of these Terms of Service. To be clear, any exchange of Confidential Information prior to the execution of these Terms of Service will continue to be governed by any such non-disclosure agreement.

“Confidential Information” means all information disclosed by one party to the other party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, Your Data. Notwithstanding the foregoing, Confidential Information does not include information that was already known to the receiving Party at the time of disclosure by the disclosing Party; was or is obtained by the receiving Party from a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms of Service or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.

WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SITE OR SERVICE.

Third Party Services and Materials. If you decide to enable, access or use Third Party Services to interact with the Service, your access and use of such Third Party Services will be governed solely by the terms and conditions of such Third Party Services. We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data or any interaction between you and the provider of such Third Party Services. We cannot guarantee the continued availability of such Third Party Service features, and may cease enabling access to them without entitling you to any refund, credit or other compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service in a manner acceptable to us. You irrevocably waive any claim against us with respect to such Third Party Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such Third Party Services, or your reliance on the privacy practices, data security processes or other policies of such Third Party Services. You may be required to register for or log into such Third Party Services on their respective websites. By enabling any Third Party Services, you are expressly permitting us to disclose your login and data as necessary to facilitate the use or enablement of such Third Party Services.

“Third Party Services” means third party products, applications, services, software, networks, systems, directories, websites, databases, and information which the Service links to, or which you may connect to or enable in conjunction with the Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by you or at your direction. For avoidance of doubt, your EHR software system and the EHR API are Third Party Services.

The Service and the Site may display, include, or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party web sites. By usingthe Service and/or the Site, you acknowledge and agree that we are not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.

d. No Professional Advice. The content available through the Site is for informational, personal and educational purposes only, and is not a substitute for the professional judgment of a qualified healthcare professional in diagnosing and treating patients. We do not, through the Site or Services or any other available products or services, provide medical advice, nor do we provide medical prescriptions, treatments, or diagnostic services.

5. COLLECTION AND USE OF DATA

As you use the Site, we will gather and use information about you for a variety of lawful purposes, including to provide, support and improve Site, to integrate it with third-party service providers, and to create anonymized data that may be used for lawful business purposes. Our collection and use of data through the Site is governed by, and described in more detail in https://cdio.ai/privacy-policy/. By using the Site, you agree that data about you may be used in accordance with this Privacy Notice.

6. BREACH

a. If you breach any of the terms of these Terms of Service, all licenses granted by us, including permission to use the Service, will terminate automatically. Additionally, we may suspend, disable, or delete your access to the Service (or any part of the foregoing) with or without notice, for any or no reason. If we revoke your access to the Service for any suspected breach of these Terms of Service by you, you are prohibited from re-registering for the Service under a different name. In the event we revoke your use of the Service, we may, but are not obligated to, delete any of Your Data. We will not be responsible for the deletion of (or failure to delete) Your Data. All sections which by their nature should survive the termination of these Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms of Service by us or you. Termination will not limit any of our other rights or remedies at law or in equity.

7. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY

a. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SITE AND/OR SERVICE. YOU AGREE THAT USE OF THE SITE AND/OR SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND THE SITE (INCLUDING THE USE, PERFORMANCE AND SUPPORT OF THE SITE AND/OR SERVICE), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT (I) THE SERVICE OR THE SITE WILL MEET YOUR REQUIREMENTS, (II) OPERATION OF THE SERVICE AND THE SITE WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (III) THAT THE SERVICE AND THE SITE WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (IV) DEFECTS IN THE SERVICE OR THE SITE WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY US OR OUR AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

b. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OF SERVICE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICE OR THE SITE OR THESE TERMS OF SERVICE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. OUR TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

c. By entering into these Terms of Service and using the Service, you agree that you shall defend, indemnify and hold us, our licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms of Service or any applicable law or regulation; (b) your violation of any rights of any third party; (c) any unauthorized use of the Site and/or Service; (d) your negligence or willful misconduct; or (e) heath care decision-making, patient care, or treatment outcomes.

8. OWNERSHIP

a. The Site and the Service and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that we and/or our licensors own all right, title and interest in and to the Service and the Site (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights in or related to the Site or Service) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of our (or our licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms of Service.

b. Any and all (i) suggestions for correction, change and modification to the Site and/or Service and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to us by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by us or otherwise relating to the Site and/or Service (collectively, “Revisions”), are and will remain our property. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Service and the Site or in any such Feedback or Revisions. You agree to assign to us any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions.

9. ARBITRATION AND CLASS ACTION WAIVER

This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt-out procedure described below.

a. Informal Process First. You agree that in the event of any dispute between you and us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.

b. Arbitration Agreement. Under these Terms, you agree that any dispute, claim, or controversy arising out of or relating to these Terms or your use of our services and/or products, including the Service and the Site, or relating in any way to the communications between you and us or any other user of Use will be finally resolved by confidential binding arbitration administered by Judicial Arbitration and Mediation Services (“JAMS”) in the state of Illinois or another forum mutually agreed upon by you and us. The arbitration will be conducted according to the JAMS Expedited Procedures for arbitration by a single arbitrator nominated jointly by you and us. If JAMS is not hearing consumer commercial disputes at the time, we may select another arbitral body at its sole discretion. The arbitrator's award will be binding and may be entered as a judgment in a court of competent jurisdiction. This clause shall not preclude us from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, or to seek injunctive relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our copyrights, trademarks, trade secrets, or patents. This arbitration agreement does not (a) govern any Claim by us for infringement of our intellectual property or access to the Site or Service that is unauthorized or exceeds authorization granted in these Terms of Service or (b) bar you from making use of applicable small claims court procedures in appropriate cases.

You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a Class Action. This arbitration provision will survive any termination of these Terms of Service.

Class Action WaiverAny Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.

If this Class Action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and us each waive any right to a jury trial.

10. GENERAL PROVISIONS

a. We reserve the right to monitor use of the Site and/or the Service, and to investigate and take appropriate legal action against any party that uses the Site or Service in violation of these Terms of Service or applicable law. We reserve the right to accept, reject or modify any content posted to the Site, but assume no liability based on its acceptance, rejection, modification or failure to modify any such content.

b. Export Laws. You agree that you will not export or re-export, directly or indirectly the Service and/or other information or materials provided by us under these Terms of Service, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

c. Injunctive Relief. You agree that a breach of these Terms of Service will cause irreparable injury to us for which monetary damages would not be an adequate remedy and we will be entitled to equitable relief in addition to any other remedies available to us under these Terms of Service, or at law without a bond, other security or proof of damages.

d. Miscellaneous. These Terms of Service constitute the entire agreement between you and us regarding your use of the Site. If any term or provision of these Terms of Service is found to be invalid, illegal or otherwise unenforceable, such a finding will not affect the other terms or provisions of these Terms of Service, or the Terms of Service as a whole, but such a term or provision will be deemed modified to the extent necessary to render such a term or provision enforceable, and the rights and obligations of you and us will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements set forth in these Terms of Service. Your obligations pursuant to these Terms of Service will survive termination of your use of the Site. The JAMS Rules and the laws of the State of Illinois, excluding its conflicts of law rules, govern these Terms of Service and your use of the Service and Site. Your use of the Service may also be subject to other local, state, national, or international laws.

Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

e. Contact Us. You may contact us regarding the Service or these Terms of Service by mail at Cardio Diagnostics Inc., by email at [email protected], or by phone at +1 (855) 226-9991 These Terms of Service sets forth the entire understanding of the parties with respect to their subject matter.