Synchronizer Agreement

Effective Date: March 7, 2023

NexHealth, Inc. (”NexHealth”) develops, operates, and distributes proprietary appointment scheduling, patient communications, payment processing, and other software applications, and certain related software applications, components, and features or functionality incorporated in or integral to such software applications, which are designed for installation or use on Customer’s and its Users’ computers and mobile devices, including without limitation NexHealth’s Access Protocols (defined below) (any such solution, software application, or feature, a “Solution”). “Access Protocols” means the security keys, access codes, technical specifications, connectivity standards or protocols, relevant procedures, and the data exchange (e.g., read/write) software or applications developed or provided by NexHealth to access or use Solutions.

This agreement includes limitations of liability, an agreement to individually arbitrate disputes, and a waiver of class action and jury rights (Sections 7-9).

The Synchronizer Agreement only covers your use of our data export and exchange technology (collectively, “the Synchronizer”). Your use of the Solutions may also be subject to our User Agreement and Privacy Policy, which are posted through our Solutions. Please also note that our business-to-business website is subject to separate terms of service and privacy policy.

DO NOT USE THE SYNCHRONIZER IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS AGREEMENT.

1. ACCEPTANCE OF SYNCHRONIZER AGREEMENT‍

The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Agreement”), govern your access to and use of the Synchronizer. This Agreement is entered into by and between you and NexHealth (collectively the “Parties,” individually each a “Party”). References to “you” and “your” mean, individually or collectively, as the context dictates, the individual user of the Synchronizer.

2. THE SYNCHRONIZER‍

2.1 How it Works. The Synchronizer is proprietary technology built by us to allow our Customers to access (i.e., read) and exchange (i.e., write) data within, or otherwise interact with, the other NexHealth Solutions, applications not provided or sold by NexHealth (collectively, “Third-Party Products”), and Record Systems. “Record Systems” means third-party electronic data repository systems, including, but not limited to, electronic health record systems.
2.2 Authorized Users. We are a technology company. We offer our Solutions to a wide range of healthcare professionals and their employers and patients, technology developers, and companies, and other third parties. The Synchronizer is intended to be used only by individuals who are authorized by us, our Affiliates, Customers, or Affiliates or Clients of our Customers (collectively, “Exchange Users”). An “Affiliate” of our Customers or NexHealth means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with such Customer or NexHealth. For this purpose, “control” means the possession of the power to direct, or to cause the direction of, the day-to-day management, operation, and policies of any given person or entity. A “Client” of a Customer is any medical or dental care provider (“Practice”) that has contracted with Customer for the provision of services to the Practice, including but not limited to, services similar to the available Solutions. An example is when Customer is a management services organization or a dental services organization or similar entity and they have a medical practice that is a client for which they make available technology solutions. A Customer of NexHealth is an entity or entity that subscribes to one of NexHealth’s Solutions. For example, an Exchange User may be:

A NexHealth customer;
Healthcare professional whose employer subscribes to our SaaS; or
An API developer and their end users.

In each case, the organization or entity that employs or otherwise engages the Synchronizer User must, in addition to this Agreement, have a written agreement in place with NexHealth or a customer of NexHealth that is authorized by us to sublicense the Synchronizer to the Exchange User. We reserve the right to comply with instructions from our customers to discontinue offering the Synchronizer to any of their Exchange Users.

If you do not qualify as an Exchange User, then you must not access or use the Synchronizer. Any unauthorized use of the Synchronizer (including without limitation, accessing any aspect of the Solutions for which you are not authorized) is expressly prohibited. You may be eligible to use other products or features of our Solutions that do not include the Synchronizer.

2.1 Access and Use Conditions. If you are an authorized Exchange User, NexHealth hereby grants to you a limited, non-exclusive, non-assignable, and non-transferable right to access and use the Synchronizer for your own internal purposes subject to this Agreement and the User Documents. All other rights are reserved.
AS BETWEEN YOU AND NEXHEALTH, YOU ARE SOLELY RESPONSIBLE FOR OBTAINING, AND YOU REPRESENT AND WARRANT TO US THAT YOU HAVE OR SHALL OBTAIN, IN A TIMELY MANNER AND AT YOUR OWN COST AND EXPENSE, ANY CONSENTS, APPROVALS, AUTHORIZATIONS, LICENSES AND PERMITS OF THIRD PARTIES THAT YOU MIGHT NEED TO USE THE SYNCHRONIZER—INCLUDING BUT NOT LIMITED TO ANY ELECTRONIC HEALTH RECORD SYSTEM OR OTHER SYSTEMS WITH WHICH THE SYNCHRONIZER MIGHT INTERACT THROUGH YOUR USE OF THE SYNCHRONIZER—WHICH ARE NECESSARY OR REQUIRED FOR THE SYNCHRONIZER TO OPERATE (COLLECTIVELY, “THIRD-PARTY CONSENTS”). If requested, you must provide us with reasonable evidence of such Third-Party Consents.

We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Synchronizer or decrease the speed of reads or writes of data done by the Synchronizer in our sole and absolute discretion without notice to you. We will not be liable if for any reason all or part of the Synchronizer is unavailable at any time or for any period.

In addition to the prohibited uses of our Solutions listed in the Acceptable Use Policy and User Agreement, you cannot use the Synchronizer covertly or without the device user’s consent.

3. CONSENT TO READING DATA‍

You give your explicit consent for persons employed or otherwise engaged by NexHealth, NexHealth’s Affiliates, NexHealth’s Customers, and NexHealth’s Customers’ Clients and Affiliates to read your data in connection with the Solutions that are being provided to you or the organization that employs or otherwise engages you. By using the Synchronizer, you further understand and agree that NexHealth, NexHealth’s Affiliates, NexHealth’s Customers, and NexHealth’s Customers’ Clients and Affiliates may read user data under the following circumstances: (a) the data is aggregated and anonymized and used for internal operations in accordance with applicable privacy and other jurisdictional legal requirements; (b) it’s necessary for security purposes (i.e., investigating abuse); (c) to provide technical support; (d) for ordinary business operations; € to exercise any access, exchange, or use rights set forth in the agreements governing or related to the Solutions; (f) to build or improve Solutions; or (g) to comply with applicable laws.

4. TERM AND TERMINATION‍

This Agreement is effective immediately between you and us upon your use or download of the Synchronizer. The then-current version of this Agreement will remain in full force and effect while you use the Synchronizer. Your request and ability to access and use the Synchronizer is not guaranteed. NexHealth may turn off your access to the Synchronizer without notice for any reason or no reason. You may terminate this Agreement by uninstalling the Synchronizer from your browser and device(s) and sending a request to terminate this Agreement to legal@nexhealth.com.

5. CHANGES TO THE SYNCHRONIZER AGREEMENT‍

We may modify this Agreement from time to time and, when making modifications, we will update the “Last Updated” date set forth above. All changes are effective immediately when we post them and apply to all access to and use of the Synchronizer thereafter. Your continued use of the Synchronizer after the posting of the revised Agreement means that you accept and agree to the changes. You are expected to check the Agreement from time to time so you are aware of change as they are binding on you.

6. DISCLAIMERS OF WARRANTIES‍

THE SYNCHRONIZER IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” AND NEXHEALTH SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, NEXHEALTH SPECIFICALLY DISCLAIMS ALL AND ANY IMPLIED WARRANTIES OR CONDITIONS (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, DATA ACCURACY OR COMPLETENESS, SYSTEM INTEGRATION, OR INTEROPERABILITY, NONINTERFERENCE, QUALITY, VALUE, OPERABILITY OR CONDITION), AND ANY WARRANTIES THAT MIGHT OTHERWISE ARISE THROUGH USAGE OF TRADE OR CUSTOM, COURSE OF DEALING,OR COURSE OF PERFORMANCE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. NEXHEALTH MAKES NO WARRANTY OF ANY KIND THAT THE SYNCHRONIZER IS WITHOUT DEFECT OR ERROR, WILL MEET USER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF USER’S SOFTWARE, SYSTEM, OR OTHER SERVICES OR THIRD-PARTY PRODUCTS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, WILL BE CONTINUOUSLY AVAILABLE OR APPROPRIATE FOR USER’S PARTICULAR USE, OR THAT ANY ISSUES WHICH MAY BE CONTAINED IN THE SOLUTION CAN OR WILL BE FIXED. WITHOUT LIMITING THE FOREGOING, NEITHER NEXHEALTH NOR ITS LICENSORS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, RESELLERS, OR AFFILIATES MAKE ANY WARRANTIES (WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY) AND EXPRESSLY DISCLAIM ALL SUCH WARRANTIES, TO THE EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SOLUTIONS, ANY RELATED DOCUMENTATION, LANGUAGE IN FORMS, NOTICES, AUTHORIZATIONS, CONSENTS, OR TEMPLATES PROVIDED IN CONNECTION WITH THE SOLUTION OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.

7. LIMITATIONS OF LIABILITY‍

7.1 Limitations and Exclusion; Special Damages. EXCEPT FOR EXCHANGE USER’S BREACH OF OBLIGATIONS UNDER SECTIONS 2.2 (AUTHORIZED USERS) AND 2.3 (ACCESS AND USE CONDITIONS) OR EXCHANGE USER’S INFRINGEMENT OF NEXHEALTH’S INTELLECTUAL PROPERTY, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANYTHING ELSE TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, DATA LOSS, DAMAGE OR DISCLOSURE, OR LIABILITIES TO THIRD PARTIES HOWEVER ARISING), INCURRED BY EITHER PARTY OR ANY THIRD PARTY REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

7.2 Cap on Monetary Liability. NEXHEALTH’S MAXIMUM CUMULATIVE, AGGREGATE LIABILITY TO USER FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN TYPES OF DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN INEFFECTIVE, OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. NO CLAIM OR ACTION MAY BE BROUGHT BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION OCCURRED, REGARDLESS OF WHETHER YOU WERE OR SHOULD REASONABLY HAVE BEEN AWARE OF THE EVENT WITHIN THAT TIME PERIOD.

7.3 No Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANYTHING ELSE TO THE CONTRARY, NEXHEALTH SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY OF THE FOLLOWING: (A) FAILURE OF THE SYNCHRONIZER; (B) YOUR NEGLIGENCE OR INTENTIONAL MISCONDUCT; OR (C) YOUR MISUSE OF THE SYNCHRONIZER.

7.4 Device Compatibility Disclaimer. NexHealth does not warrant that the Synchronizer is compatible with all devices and with all versions/updates of all operating systems or firmware. If you update your operating system, interface, data fields or data architecture, browser, or firmware, the Synchronizer may not function properly.

7.5 Basis of the Bargain. THE PROVISIONS OF SECTIONS 7.1, 7.2, 7.3, AND 7.4 OF THIS AGREEMENT ARE ALL FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN USER AND NEXHEALTH, AND NEXHEALTH WOULD NOT BE ABLE TO PROVIDE THE SYNCHRONIZER TO CUSTOMER OR USER WITHOUT EACH SUCH PROVISION.

8. GOVERNING LAW; ARBITRATION‍

8.1 Governing Law. This Agreement shall be governed by and construed under the substantive laws of the State of Utah, without regard to conflicts of laws provisions. Any legal action or proceeding arising under or relating to this Agreement permitted to be brought in court shall be brought exclusively in the state or federal courts located in Salt Lake City, Utah, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Arbitration Provision that follows in 13.2 (Arbitration Procedure) below are also governed by the Federal Arbitration Act, 9 U.S.C. § 1 et. al.

8.2 Arbitration. Except for NexHealth being able to directly seek injunctive and other equitable relief in court for infringement or misappropriation or NexHealth’s Intellectual Property or Confidential Information, any dispute arising out of relating to this Agreement or the subject matter thereof, any breach of this Agreement, including any dispute regarding the scope of this clause, and any injunctive and other equitable relief sought by Customer or Account holder shall be resolved confidentially and exclusively through the following means:

8.2.1 Notice. Before filing a claim for arbitration, a Party must notify the other party of its intent to file and offer to address the issues in dispute through negotiation or mediation; no arbitration claim may be filed sooner than sixty (60) calendar days after such notice is provided.

8.2.2 Rules. The American Arbitration Association (AAA’s) rules for commercial disputes will apply to any disputes between the parties, unless specifically contradicted by any provisions of this Arbitration Provision. All hearings shall be conducted virtually (such as by a teleconference platform) or in person in Draper County, Utah.

8.2.3 Individual Arbitration and Waiver of Rights. Claims may not be aggregated with those of other persons/entities or otherwise consolidated; the parties agree herein to individual arbitration of their disputes. The Parties agree to waive any rights to assert or participate in a class action claim or to adjudication by a judge or jury.

8.2.4 Confidentiality. The Parties agree to disclose the existence of any arbitration, information about what has taken place or may take place in an arbitration, the award, or information about the outcome of this arbitration, only as needed to: (a) present claims and defenses in arbitration; (b) pursue or oppose legal remedies in court pertaining to this arbitration, including enforcement of an award; (c) comply in good faith with Applicable Law; or (d) comply with the award. In all other respects, the Parties agree to keep any arbitration strictly confidential. The Parties further reserve the right to enter into, or request from the arbitrator, a more detailed or restrictive confidentiality agreement or protective order.

8.2.5 The parties further agree:

If less than $50,000 in damages, fees, and costs are at issue, then the parties agree to a streamlined, one-day telephonic or videoconference arbitration before an arbitrator assigned by the AAA or otherwise mutually selected by the parties. The parties further agree that no written discovery or depositions will be permitted prior to the hearing, and that no more than 15 pages of legal briefing (plus exhibits) may be submitted for the arbitrator’s review by either party.

If between $50,000 and $500,000 in damages, fees, and costs are at issue, if the parties cannot agree on an arbitration provider or individual arbitration to oversee their dispute, then the parties agree that they will ask the AAA for a list of eight potential arbitrators and will rank those arbitrators for selection of one arbitrator by AAA, which would then administer the arbitration. The arbitrator will issue a final order that includes the facts and legal authorities supporting the decision.

If more than $500,000 in damages, fees, and costs are at issue, then the parties agree that the arbitration should be conducted by a panel of three arbitrators: one arbitrator appointed by each Party and the third, who shall be the presiding arbitrator, appointed by the agreement of the Parties. The arbitrators will issue a final order that includes the facts and legal authorities supporting their decision.

Each party shall pay its own legal fees and will equally share the costs of arbitration (i.e., the arbitrator’s fees and expenses, plus any administrative fees); the only exception is that should the arbitrator find that claims were asserted in bad faith, then the arbitrator(s) has the discretion to award a party its attorneys’ fees. The arbitrator may not award damages precluded by this Agreement.

In instances where more than $50,000 in damages, fees, and costs are at issue, the arbitrator(s) lacks authority to make errors of law in rendering a decision.

9. INTERNATIONAL USE

Our Solutions are controlled and operated by NexHealth from its offices within the United States and are only intended for use in the United States. Accessing and using the Solutions is prohibited from territories where doing so would be illegal. If you access or use the Solutions from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.

10. GENERAL PROVISIONS‍

10.1 Entire Agreement. This Agreement and the other documents and agreements referenced herein constitute the entire agreement and understanding between You and NexHealth regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding such subject matter. ‍

10.2 Conflicts of Terms. In the event of any conflict between this Agreement and the Agreement entered into by the NexHealth’s Customer, NexHealth’s Customers Clients, or NexHealth Customer Affiliate that has authorized you to have access to the Synchronizer, this Agreement shall prevail and control.

10.3 Severability. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement (or portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, such provision (or portion thereof) shall be deemed severed from this Agreement and all other provisions of this Agreement shall remain in full force and effect.

10.4 Survival. The provisions of this Agreement, and the rights, duties, and obligations of the Parties hereunder, which by their nature may be reasonably inferred to have been intended to survive termination, expiration, cancellation, or completion of this Agreement (including those set forth in Sections 2.2 (Authorized Users), 2.3 (Access and Use Conditions), 3 (Consent to Reading Data), 6 (Disclaimer of Warranties), 7 (Limitations of Liability), 8 (Governing Law; Jurisdiction; Arbitration), and 11 (General Provisions)) will survive and continue as valid and enforceable rights, duties, and obligations following termination without limitation as to time.

10.5 No Waiver. The failure by either Party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any right or remedy provided herein, shall not constitute a waiver of such provision, right, or remedy or in any way affect the validity of this Agreement. Any waiver of any by either Party shall not be deemed a continuing waiver and shall apply only to the instance to which such waiver is directed. Any waiver must be in a writing signed by an authorized representative of the waiving party. Other than as expressly otherwise provided in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other rights or remedies of each Party hereunder or at law or in equity.

10.6 Assignment. You may not assign or otherwise transfer this Agreement, either voluntarily or by operation of law, without the prior written consent of NexHealth (such consent not to be unreasonably withheld).

10.7 Force Majeure. NexHealth shall not be liable, or deemed to be in default, for any delay or failure in its performance hereunder, to the extent such delay or failure results from causes beyond NexHealth’s reasonable control (any such cause, a “Force Majeure”), including, but not limited to, acts of God, terrorism, war, civil insurrection, strikes or other organized labor interruption, epidemics, pandemics, or other threats of serious disease or illness (as determined by an authorized state governmental agency or official or the Centers for Disease Control and Prevention), interruptions or failures of third-party utilities (e.g., electricity providers) or third-party communications providers or the Internet, fire, explosions, floods, or other natural disasters, acts or omissions of you or third parties not under the direction or control of NexHealth, restrictions or changes in Third-Party Products or their license agreements (including, without limitation, Record System applications) which result in the failure or interruption of the Solutions’ ability to access the Third-Party Products or data stored within such Third-Party Products which is necessary for NexHealth’s performance under this Agreement, or any similar cause.

10.8 Notice. Except as otherwise provided in this Agreement, and other than for routine administrative communications, which may be exchanged by the Parties via email or other agreed upon means, all notices, consents, and approvals by either Party under this Agreement shall be in writing, shall be sent to: NexHealth's physical address for notices as provided below in this Section 10.8, and its email address for notices is legal@nexhealth.com and (b) your Account email addresse. Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable claim or arbitration by Account holder must be sent by courier or mail pursuant to clause (i) or (ii)). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.

NexHealth
Attn: Legal
12936 Frontrunner Blvd
Suite 525
Draper, UT 84020

10.9 Miscellaneous. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. The term “person” includes individuals, corporations, partnerships, trusts, other legal entities, organizations and associations, regardless of whether for-profit or non-profit, and any government or governmental agency or authority. The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written,” if such word does not already appear. References to “this Agreement” or its terms shall be interpreted to refer to the terms of this Agreement and any other document incorporated herein. The headings or captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement.