This AGREEMENT (“Agreement”) is entered into on the date signed below, by and between (“Participant”) and Lynx Collaborative Care Network, Inc., a Colorado corporation (“Lynx”).RecitalsA. Lynx collects, summarizes, analyzes and communicates medical information to help patients and their providers make well-informed decisions. B. Participant wishes to retain Lynx to provide services pertaining to health information and decisions.Agreement1. Engagement. Participant hereby engages Lynx, and Lynx hereby accepts such engagement, on the terms and conditions set forth in this Agreement.2. Scope of Services. Lynx shall provide to Participant services pertaining to Participant’s health information as set forth on Lynx’s Schedule of Services and Fees, which is hereby incorporated by reference. The methods used by Lynx in performing the services shall be within Lynx’s sole discretion.PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE RELATIONSHIP WITH LYNX IS NOT THAT OF PHYSICIAN- PATIENT, NURSE-PATIENT OR ANYTHING SIMILAR THERETO, AND THAT LYNX IS NOT SERVING OR CONSULTING IN THE CAPACITY OF A PHYSICIAN, NURSE OR OTHER LICENSED, CERTIFIED OR REGISTERED HEALTH CARE PROFESSIONAL.Participant agrees not to use or rely upon Lynx’s services as a substitute for diagnostic or medical treatment, which shall be provided by appropriate professionals who do have a physician-patient, nurse-patient or similar relationship with Participant. Participant agrees to be directly and solely responsible, in collaboration with Participant’s physicians, nurses and other health care professionals and not Lynx, for all decisions regarding Participant’s diagnosis and treatment. Participant acknowledges and agrees that Lynx’s relationship with Participant is such that Lynx cannot and will not control Participant’s diagnostic or medical decisions or care.Services may include record collection, archiving, management, summarization and other informational services (excluding those construed as “practice” by a licensed professional) provided by physicians, nurses, assistants or other personnel, as more particularly described on Lynx’s Schedule of Services and Fees. Participant acknowledges that Lynx services may not be covered by any form of medical professional liability (malpractice) insurance.3. Term. This Agreement shall continue until terminated by either party, without cause, upon 30 days’ prior written notice to the other party. In the event of material breach of this Agreement, the non-breaching party may, with written notice to the breaching party, terminate this Agreement effective immediately. Any dispute arising under this Agreement shall be resolved in accordance with Paragraph 15.4. Compensation. Participant agrees to pay Lynx’s fees and to reimburse Lynx’s costs in accordance with Lynx’s Schedule of Services and Fees, which is incorporated by reference. Lynx reserves the right to amend its Schedule of Services and Fees from time to time with reasonable notice to Participant. Any additional or different terms in any written communication from Participant as to the terms set forth in Lynx’s Schedule of Services and Fees will have no legal effect unless specifically acknowledged in writing by Lynx. If Participant has any concerns with the accuracy or amount of any billing, Participant agrees to notify Lynx in writing within 60 days of receipt of the billing of any such concern or objection. Upon the expiration of the 60-day period, all billings not previously objected to in writing shall be deemed accepted and a part of this written agreement.5. Confidential Information. Lynx is not a Covered Entity under the Health Insurance Portability andAccountability Act of 1996 (HIPAA). However, Lynx acknowledges that medical and personal information received from Participant or Participant’s health care providers or developed by Lynx on behalf of Participant in connection with this Agreement, including, without limitation, the Lynx Written Materials, is received or developed by Lynx in confidence. Except as otherwise provided in Paragraph 2 and except as necessary with respect to health care professionals or facilities providing treatment for Participant, for Lynx’s own proper management and administration, to carry out Lynx’s legal responsibilities or as required by law, order of a court or action by a government agency, Lynx will not disclose Confidential Information to third parties unless authorized by Participant. Except as provided herein, Confidential Information will be used only for the purposes for which it is received or developed. Lynx shall exercise the same degree of care, however not less than reasonable care, in protecting such information from disclosure as it exercises with its own proprietary information. The restrictions on the use or disclosure of information shall not apply to any information that Lynx can document is, was or becomes the property of Lynx prior to disclosure or is, was or becomes in the public domain without breach of this Agreement and through no fault of Lynx.6. Use of Non-Confidential Information. Lynx will not disclose Participant’s individual information (such as contact information) to third parties without permission, or as otherwise required by law.7. Data Storage. Participant acknowledges and agrees that Lynx will store Participant’s data, including Confidential Information, in electronic archives or databases created or maintained by Lynx and/or Lynx’s Business Associates in its received form or other or derivative forms that Lynx requires to perform its work. At Lynx’s sole discretion, electronic data may be stored on servers controlled by Lynx or its Business Associates. Physical materials, including paper records and data storage media such as CDs and DVDs received by Lynx, will be used and stored by Lynx as required to perform Lynx’s services. In the absence of Participant’s specific instructions to the contrary, Lynx will securely destroy such materials at Lynx’s sole discretion, when it is confident that they are no longer needed for Lynx’s purposes.8. Secure Communications. Participant understands that several methods exist for exchanging Confidential Information with Lynx. Participant acknowledges that all forms of communication are subject to risks including interception, misdirection or loss. Participant agrees to comply with the terms of the Lynx Communication Agreement (incorporated by reference); including agreement by the Participant to designate one or more preferred methods for communicating Confidential Information with Lynx.Notwithstanding Participant’s preferences, Lynx may use any reasonable means at its disposal to communicate with Participant when in Lynx’s judgment circumstances require. Participant may designate parties on the Lynx Communication Agreement with whom Lynx is authorized to communicate Confidential Information on Participant’s behalf. Lynx will exercise care in communicating Participant’s Confidential Information, including the use of secure messaging technology.9. Authorization to Obtain Records. Participant authorizes Lynx to use the Lynx Authorization to Disclose Medical Information form or other forms required to obtain Participant’s health information from providers whom Participant designates on the Lynx Authorization to Obtain Medical Records form. Participant may withdraw this authorization at any time for any record source by giving reasonable notice to Lynx.10. Intellectual Property. Except as specifically set forth in this Paragraph, nothing in this Agreement shall give Participant any ownership, interest in or rights in the intellectual property of Lynx, including without limitation the Lynx Healthcare NavigatorTM, record summary or other materials Lynx develops for Participant. All intellectual property that is owned or controlled by Lynx as of the commencement of the services under or obtained independently by Lynx during the performance of such services, shall remain under the ownership or control of Lynx throughout the performance of such services and thereafter.Lynx Written Materials. All files, letters, memoranda, reports, sketches, drawings, notebooks, or other written materials developed or created by Lynx in furtherance of performing services under this Agreement (collectively, “Lynx Written Materials”) shall be the property of Lynx. Upon request, Participant shall be entitled to a copy of the Lynx Written Materials developed for the Participant. Participant shall not assign or otherwise transfer its interest in the Lynx Written Materials without the prior written consent of the Lynx.11. LIMITATION OF LIABILITY. LYNX’S TOTAL AGGREGATE LIABILITY TO PARTICIPANT UNDER THIS AGREEMENT FOR ALL CLAIMS SHALL NOT EXCEED THE AMOUNT PAID BY PARTICIPANT DURING THE PRIOR 12 MONTHS HEREUNDER FOR THE SERVICES OF LYNX GIVING RISE TO SUCH LIABILITY, WHETHER THE CLAIM ARISES UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORIES OF LAW, EVEN IF LYNX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LYNX BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORIES OF LAW, EVEN IF LYNX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.12. Notice. Any notice required or permitted by this Agreement shall be in writing and shall be deemed given if delivered personally or if sent by one party to the other by registered or certified mail, postage prepaid, addressed to the other party at the address of that party as stated in this Agreement or at such other address as the party to be noticed shall have advised the noticing party in writing. Notice shall be deemed effective upon the earlier of actual receipt or delivery at the stated address of the party to be noticed. Notices sent by electronic means shall not be deemed to have been received unless expressly and conclusively acknowledged to have been so, by the receiving party.13. Relationship Between the Parties. The relationship between the parties shall be that of independent contractors. Neither party shall have power, either express or implied, to make any promise, warranty or representation on behalf of the other or to bind the other party in any manner. In no event shall the parties be considered partners, joint venturers, agent and principal or physician, nurse or other health care professional and patient.14. Choice of Law. This Agreement has been entered into under the laws of the State of Colorado and the parties hereto agree that it shall be interpreted and all disputes arising hereunder shall be resolved in accordance with Colorado law.15. Dispute Resolution.(a) Notice of Claim. Each party hereto shall make reasonable efforts to advise the other party of the basis of any dispute, claim or complaint of any nature regarding such other party’s performance under this Agreement promptly after discovery, and to attempt in good faith to resolve such matter privately. If any such matter is not resolved promptly to the satisfaction of the complaining party, that party shall give to the other party written notice setting forth the nature of the complaint in reasonable detail. The party receiving such notice shall have thirty (30) days from receipt of such notice to respond in writing and to attempt to resolve the matter before the complaining party may resort to the legal remedies provided herein. The existence of any such matter shall be kept confidential until a good faith attempt at resolution through the foregoing procedure has occurred.(b) Mediation and Arbitration. If a dispute arises out of or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through negotiation under Paragraph 15 (a) or otherwise, the parties agree, before resorting to arbitration, first to try in good faith to settle the dispute by mediation administered by Judicial Arbiter Group, 1601 Blake Street, Suite 400, Denver, Colorado 80202 (https://jaginc.com/) in accordance with the Rules of the American Arbitration Association in effect at the time the demand for mediation is made, with each party to be responsible for such party’s expenses relating thereto, including attorneys’ fees. Thereafter, any unresolved controversy or claim arising from or relating to this Agreement or breach thereof shall be settled by arbitration of any controversy between the parties in any way related to this Agreement, or the breach thereof, which cannot be resolved by mutual agreement, including one for which injunctive relief is a remedy, shall be submitted to arbitration before a single arbitrator. The site of the arbitration shall be in Denver, Colorado, and the arbitration shall be conducted before the Judicial Arbiter Group, 1601 Blake Street, Suite 400, Denver, Colorado 80202 (https://jaginc.com/) in accordance with the Rules of the American Arbitration Association in effect at the time the demand for arbitration is made. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction and shall be binding and final. The cost of arbitration shall be borne by the losing party, as determined by the arbitrators. Each party shall bear such party’s own attorneys’ fees.16. Indemnification. Participant hereby assumes all liability for, and agrees to indemnify and defend Lynx with respect to any claim, suit or proceeding brought against Lynx, and to pay all reasonable expenses related thereto, including attorneys’ fees relating to or arising out of Lynx’s provision of services hereunder, except to the extent those claims result from Lynx’s negligence, gross negligence or intentional misconduct, subject to the provisions of Paragraph 15. Participant agrees that Lynx may elect, in its sole and absolute discretion, to pursue any claim arising out of, or based upon, this provision in arbitration pursuant to Paragraph 15 or in a judicial forum.17. No Waiver. Either party’s failure to insist on strict compliance with any provision of this Agreement or to exercise any right or remedy, does not waive the same.18. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one right or remedy shall be exclusive of the others or of any right or remedy allowed in law or in equity.19. Severability. If a court finds any provision of this Agreement invalid or unenforceable as applied to any circumstance, the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties. The parties further agree that any provision found to be invalid or unenforceable shall be replaced with a provision that will achieve, to the extent possible, the purpose of the void or unenforceable provision.20. Survival. The respective obligations and covenants of the parties under this Agreement that shall by their nature extend beyond the expiration or termination of this Agreement, including, without limitation, the confidentiality and indemnification obligations, shall survive the termination or expiration of this Agreement.21. Headings. The headings throughout this Agreement are for the convenience and reference purposes only and shall not be deemed to expand, modify, amplify, or aid in the interpretation, construction, or meaning of any provision of this Agreement.22. Review by Independent Counsel. Each party acknowledges and agrees that such party has had the opportunity to seek independent legal advice concerning this Agreement. Each party understands and acknowledges that any failure by one party to seek independent legal advice concerning this Agreement before executing it resulted wholly from that party’s own decision and was not the fault of the other party.23. Entire Agreement. This Agreement (including the Attachments incorporated by reference) constitutes the entire agreement and understanding between the parties as to the subject matter hereof and merges all prior discussions between them, and neither of the parties shall be bound by any conditions, definitions, warranties or representations with respect to the subject matter of this Agreement other than as expressly provided for herein or as duly set forth subsequent to the date hereof inwriting signed by the duly-authorized representatives of the parties to be bound thereby.IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year written below.
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