AVER CLOUD™ END USER AGREEMENT

This End User Agreement (“EUA”) is a legal agreement between you and Aver Inc. (“Aver”).

Aver has developed a suite of web-based applications of analytics tools and services (“Aver Cloud”) for facilitating the adoption of value-based payment programs by commercial third party payers, self-funded employer sponsored health benefit plans and health care providers. Your right to access and use Aver Cloud hereunder is subject to the terms of this EUA and any Aver software/services agreement(s) (collectively, the “Services Agreement”).

IMPORTANT: PLEASE READ THIS EUA CAREFULLY BEFORE USING AVER CLOUD.  YOU WILL NOT BE AUTHORIZED TO USE AVER CLOUD WITHOUT ACCEPTING THIS EUA.

1.

Aver Cloud may be accessed or used with third party applications (“Third Party Applications”).  Such Third Party Applications are owned or licensed by third parties (“Third Party Licensors”) and your right to use such Third Party Applications will depend solely upon the applicable license agreements of the Third Party Licensors.  References herein to “Aver Cloud” include any Third Party Applications.  If Third Party Licensors have required Aver to pass along certain terms and conditions, those terms and conditions will be located at the end of this EUA.

2. Acceptance

By indicating your acceptance below or by accessing or using Aver Cloud or a website owned or operated by Aver (“Website”), YOU INDICATE YOUR ACCEPTANCE OF ALL THE TERMS AND CONDITIONS OF THIS EUA AND THAT YOU ARE AT LEAST 18 YEARS OLD.  If you do not agree with the terms and conditions of this EUA, decline where instructed and you will not be able to access or use Aver Cloud.

3. Access and License

Aver grants you the right to remotely access and use Aver Cloud pursuant to your employment, contractual or consulting relationship with Aver’s customer. You may only use Aver Cloud (i) for your own internal business use, (ii) at your place of work or offsite utilizing remote access to connect to your place of work, and (iii) to process certain claims data of your employer or a customer of your employer. Aver Cloud is proprietary to Aver. You acquire no right to Aver Cloud or to the information and data contained in Aver Cloud, except for the right to use such information and data solely for your own business purposes, in accordance with this EUA. Your right to access and use Aver Cloud hereunder shall terminate immediately upon any termination or expiration of this EUA or the Services Agreement, for any reason, and all rights and licenses granted under this EUA shall revert to Aver.

4. User ID and Security

You will receive a user log-on ID either from your employer, supervisor or Aver (the “User ID”).  This User ID will allow you to access Aver Cloud. You may only access Aver Cloud through the User ID issued to you by your employer, supervisor or Aver.  You are authorized to access and use Aver Cloud from one computer or terminal at any given time.  You agree to take all reasonable efforts to prevent the unauthorized use or disclosure of your User ID and to protect Aver Cloud from improper access. Your User ID is personal to you only.  You may not provide anyone access to your User ID.  If you believe your User ID has been compromised please notify your supervisor and/or Aver immediately and request a new User ID.  If you fail to do so you may be responsible for any damages Aver sustains as a result of any unauthorized access or use of Aver Cloud or Website.  You are solely responsible for procuring, implementing, and maintaining all equipment, software, services (including Internet access and other telecommunication services), technology, data, facilities, and systems required or used in connection with your access to Aver Cloud.

5. Information Provided to the Site

You must provide current, complete, and accurate information when you register to use the Site. Although Aver disclaims any legal duty to verify the accuracy of any personal data that you provide to us, if Aver believes that the details you provide are not current, complete and accurate, Aver has the right to refuse you access to the Website or any of its resources, and to terminate or suspend your account. You are responsible for keeping your login information confidential and for the use of your account, whether or not such use has been authorized by you. You are prohibited from sharing your password or account with other users. You must immediately notify us of any unauthorized use of your password or your account by contacting us at the email address below.  You are solely responsible for the accuracy and completeness of any information, form or other document that you submit to Aver Cloud for claims processing, coverage determination or otherwise.  You acknowledge and agree that Aver is not responsible for any materials or information posted to or otherwise available on the Website provided by you or another user, or provided by us relying upon information submitted to us by you or another user.  Any reliance on such materials is at your own risk.

6. Opt In / Opt Out

You agree that Aver may contact you by phone, fax, and/or email so long as our contact is reasonable and appropriate. For purposes of compliance with the Telephone Consumer Protection Act (TCPA), CAN-SPAM Act and the Junk Fax Prevention Act, your use of Aver Cloud constitutes an Existing Business Relationship. You may opt out of communications from us by contacting us at the email address below.

7. Termination for Breach

Aver may terminate your access to Aver Cloud at any time if Aver reasonably believes, in its sole discretion, that you are in violation of this EUA.  This EUA shall automatically terminate if you fail to materially comply with any provision of this EUA.

8. Clinical Activities

Aver Cloud includes sophisticated tools that can assist you in the provision of health services, but it is not a substitute for competent human intervention and discretionary thinking. Therefore, you agree that you will be responsible for each of the following, as applicable, when accessing Aver Cloud: (i) entering information into Aver Cloud accurately and completely; (ii) reading information displayed by Aver Cloud on computer screens accurately; (iii) confirming the accuracy of life threatening information and critically important results that are accessed or stored though Aver Cloud in the same manner that such information and results would be confirmed or verified if it were in paper form or as would otherwise be confirmed or verified if you were using applicable standards of good medical practice; (iv) reporting any errors or suspected errors discovered in the course of accessing Aver Cloud; and (v) testing of all critical areas in Aver Cloud before accessing it.

9. Compliance; Business Conduct

You shall: (i) comply with all applicable federal, state, or local laws or regulations; (ii) conduct business in a manner which reflects favorably at all times on, and refrain from making any false or misleading representations with regard to, Aver Cloud and the goodwill and reputation of Aver; and (iii) avoid deceptive, misleading or unethical practices that are or may be detrimental to Aver or Aver Cloud.

10. NO WARRANTY

Aver does not warrant that Aver Cloud will meet your requirements or that the operation of Aver Cloud or the Website will be uninterrupted or without error.  AVER, ITS SUBCONTRACTORS, AND LICENSORS HEREBY DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES TO YOU, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, CONDITION OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE OR THAT THE WEBSITE OR THE SERVICES WILL BE ERROR-FREE.  AVER SHALL HAVE NO LIABILITY FOR THIRD PARTY SOFTWARE, CONTENT OR SERVICES, WHETHER OR NOT PROVIDED BY AVER OR ITS SUBCONTRACTORS, INCLUDING ANY THIRD PARTY SOFTWARE, CONTENT OR SERVICES SELECTED BY AVER AS MAY OR MAY NOT BE INTEGRATED INTO AVER CLOUD OR THE WEBSITE.

11.Indemnification

You will indemnify, defend and hold harmless Aver (including its respective affiliates, subsidiaries, officers, directors, employees, agents, successors and assigns) from any and all third party claims, including any damages, losses, liabilities or expenses (including without limitation court costs and reasonable attorneys’ fees) to the extent arising out of or in connection with (i) any breach of any of your obligations hereunder, (ii) any breach of any of your representations, warranties and/or covenants set forth in this EUA, and (iii) any gross negligence or willful misconduct in your performance of your obligations hereunder.  Without limitation to the foregoing, you covenant not to settle any matter without first obtaining Aver’s prior written consent.

12. Limitation of Damages

Aver is not responsible or liable for any actions taken by you as a result of your use of Aver Cloud or Website, or for any error, inaccuracy, or omission in any report or analysis you prepare in connection with or through use of Aver Cloud or Website, or for any damage resulting from such use. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, SUCH AS LOSS OF PROFITS OR LOSS OF USE, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THIS EUA OR THE SERVICES OR TRANSACTIONS DESCRIBED HEREIN (including, without limitation, the use of or inability to use Aver Cloud, any damage to equipment and any cost of recovering lost data or of reprogramming), EVEN IF IT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

13. Copyright and Confidentiality

You acknowledge that Aver Cloud, the process and technologies included therein, as well as any other information or materials made available to you by Aver are valuable assets, trade secrets, and/or copyrighted material of Aver or its Third Party Licensors and that Aver or its Third Party Licensors retains title to this confidential information.  You shall not use any of Aver’s confidential information for any purpose other than in connection with your use of Aver Cloud.  You recognize that irreparable injury would result to Aver in the event of your failure to comply with any of the terms of this Section 13, and that the full amount of the damages that would be incurred by Aver as a result of any such breach would be difficult to ascertain.  Accordingly, you hereby agree that, in the event of any such breach, threatened breach, Aver shall be entitled to seek appropriate injunctive relief, in addition to other remedies and causes of action available to Aver, without the need to post bond or prove the inadequacy of monetary damages.

14. General Restrictions on Use

You may not and may not attempt to: (i) disassemble, translate, decompile, reverse engineer, reproduce, alter or attempt to derive the source code of Aver Cloud except to the extent permitted by applicable law; (ii) obtain for or assist unauthorized third parties in obtaining access to Aver Cloud; (iii) copy Aver Cloud except to the extent expressly permitted in this EUA; (iv) modify, create derivative works based upon, sell, lease, license, distribute, sublicense or otherwise transfer Aver Cloud; (v) grant any third party any right, title, interest, lien or option in or to Aver Cloud; (vi) attempt to delete, disable, or otherwise circumvent any security measures implemented by Aver with respect to Aver Cloud; (vii) write or develop any software or application based upon or developed with reference to Aver Cloud or access Aver Cloud for the purpose of building a competitive product or service or copying its features or user interface; (viii) transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortuous, defamatory, vulgar, obscene, libelous invasive of another's privacy right or right of publicity, or racially or ethnically objectionable; (ix) infringe the intellectual property rights or other rights of any entity or person or remove, alter, add, or obscure any intellectual property or other notice included in Aver Cloud; (x) interfere with or disrupt Aver’s software or systems used to host Aver Cloud, or other equipment or networks connected to Aver Cloud; (xi) use Aver Cloud in the operation of a service bureau, outsourcing or time-sharing service; (xii) permit access to Aver Cloud by a direct competitor of Aver; (xiii) make any use of Aver Cloud that violates any applicable local, state, national, international, or foreign law or regulation; or (xiv) assist, permit, or authorize any third party entity to perform any of the activities prohibited by this EUA.

15. Privacy

You may use, receive and/or disclose protected health information, which is given the same meaning as the term “Protected Health Information” in 45 CFR §160.103, and limited to the information created or received by Aver from or on behalf of you, your employer or the company you are contracted to provide services to (“PHI”) during the course of this EUA.  Aver may use and disclose such PHI only as necessary to perform its obligations under or as permitted by this EUA or required by law.  Aver’s additional obligations with regards to PHI shall be described in a business associate agreement between your employer or the company you are contracted to provide services to and Aver. Aver is not responsible for ensuring your compliance with HIPAA or any similar privacy laws.  Aver’s use of any other information, such as personally identifiable information, provided or made available by you will also be governed by the Aver Cloud Privacy Policy, which will be provided to you upon request.

16. Governing Law

This EUA shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles.

17. Modifications

This EUA is subject to change from time to time. Aver will post on the Website, or otherwise send you, a notice of modification and changes will be effective immediately. Therefore, you are advised to review applicable pages of the Website regularly. The most current EUA will always be available on this Website.  If you do not agree to the modified EUA, you should discontinue your use of our Website.  For information on how to do so, contact us at the email address below. Your continued use of the Website and related services shall constitute your acceptance of the modified EUA.

18. Assignment

Aver may assign its rights and delegate its duties under this EUA in whole or in part at any time, at its sole discretion, and without your consent.  You may not assign, sublicense, or otherwise transfer your rights or obligations, in whole or in part, under this EUA to anyone else.


Updated as of December 1, 2016, EUAv0.1