END USER Terms of Service
Effective Date: November 29th, 2023

Cofactor AI, Inc. (“Cofactor AI,” “we,” “us,” or “our”), provides technology-enabled services and products, including without limitation the Platform (as defined below), to which you (“you,” or “your”) have a valid and current license (the “Services”) in connection with your employment or provision of services to the entity that has purchased a license for you to access and use such Services and on whose behalf you are accessing the Services (“Customer”). Your use of the Services is subject to and governed by the terms and conditions in this End User Terms of Service (“TOS”). Cofactor AI may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Cofactor AI. Additionally, any revision or addition to the Services may also be subject to additional terms outlined with respect thereto as applicable, and you shall be subject to the terms and conditions of any agreement between Cofactor AI and Customer on whose behalf you access the Services (“Additional Terms”).

In addition to this TOS and the Additional Terms, the Privacy Notice at cofactorai.com/privacy (the “Privacy Policy”) applies to how Cofactor AI collects, uses and processes information collected and received as a part of the Services. By accessing or using the Services, you agree to, and acknowledge that you have reviewed and understand the Privacy Policy and that Cofactor AI may collect and receive certain information about you, including personal data, as set forth in the Privacy Policy, and Cofactor AI may use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.

PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU ARE AGREEING ON BEHALF OF YOURSELF AND CUSTOMER TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ACT ON BEHALF OF AND BIND CUSTOMER HERETO.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS and the Additional Terms; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. This TOS is enforceable against any person or entity that installs or uses the Services on behalf of Customer. For the avoidance of doubt, this TOS is strictly between you and Cofactor AI; Customer is not a party to this TOS and by agreeing to this TOS you are not binding Customer in any way.

1. DEFINITIONS

(a) “Aggregated Data” means your Data that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used to identify you as the source of such data.

(b) “Analytics Reports” means analytical and financial reports, models and insights generated by the Services.

(c) “Analytics Templates” means Cofactor AI’s proprietary algorithms, models, and other data analytics and financial templates and tools which are provided by Cofactor AI via the Services.

(d) “Credentials” means any accounts, passwords, and other authentication credentials associated with your use of the Services.

(e) “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as may be amended from time to time, including without limitation, the Health Information Technology for Economic and Clinical Health (HITECH) Act.

(f) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos, and other source identifiers; trade secrets; software, databases, and data; and all other intellectual property and industrial designs.

(g) “Malicious Code” means without limitation code, files, scripts, agents, or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.

(h) “Platform” means a proprietary online platform hosted by Cofactor AI which is branded as “Cofactor AI” and “Cofactor Appeals Suite” and which is provided at app.cofactorai.com or otherwise by Cofactor AI, including software, code, algorithms, Analytics Templates, hosted services, and web interfaces.

(i) “Subscription Period” means the duration of the license applicable to your use of the Services (including, as applicable, plans purchased by Customer on whose behalf you are accessing the Services) commencing on the start date and ending on the end date of the applicable annual or monthly plan as purchased.

(j) “Third Party Offerings” means services delivered or performed by third parties independently of the Services, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Services.

2. ACCESS AND USE OF THE SERVICES

(a) Customer End User. You agree that (i) you are an end user of Customer who is authorized by such Customer to access and use the Services on such Customer’s behalf and pursuant to a valid and current license and unique Credentials which are associated with Customer’s account on the Services; (ii) your account and all content and Data therein may be access, used, removed, retained and controlled by such Customer; (iii) your use of the Services is, in addition to this TOS, governed by the Additional Terms; and (iv) Cofactor AI may provide your personal information to such Customer. Cofactor AI shall not be responsible for any violation by you of such agreements or obligations. You agree and acknowledge that you must protect and safeguard the confidentiality and security of Credentials.

(b) Grant. Subject to and conditioned on your compliance with this TOS, Cofactor AI shall make the Services available to you during the applicable Subscription Period, solely for the purposes authorized by Customer. You hereby agree that Cofactor AI may collect or generate Aggregated Data in connection with providing you with access to the Services. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Cofactor AI. You acknowledge and agree that Cofactor AI may improve, modify, add, or remove functions or features to or from the Services from time to time, with or without providing you with notice. You shall be solely responsible for obtaining, configuring, and maintaining any hardware, network connectivity, and third-party software required to access the Services, including computers, operating systems, web browsers, and storage devices.

(c) Third Party Offerings. Cofactor AI may make Third Party Offerings available for your use in connection with the Services. You acknowledge and agree that your use of any Third Party Offerings may be subject to a separate agreement with such third-party provider, which will govern your use of such Third Party Offerings. Cofactor AI makes no warranties of any kind and assumes no liability whatsoever for your use of (or inability to use) Third Party Offerings, which are made available by Cofactor AI “AS IS,” “AS AVAILABLE” and “WITH ALL FAULTS.”

(d) Trademarks. You may not use the Cofactor AI names, brands, trademarks, service marks, or logos that Cofactor AI makes available on the Services (“Marks”). Cofactor AI claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Cofactor AI. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Cofactor AI’s benefit.

(e) Suspension of Access to Services. Cofactor AI may (but is not obligated to) monitor the use of the Services and reserves the right to suspend your account(s) or remove or disable any of your content or Data which Cofactor AI in good faith believes violates this TOS or any applicable law or regulation.

3. Proprietary RIGHTS

(a) Responsibility for Data. All information, data (including personal health information received by Customer patients or clients), and other materials accessible through the Services (“Data”) are the sole responsibility of the party from whom such materials originated. You acknowledge and agree that: (i) the Services may provide access to or rely on Data from third parties (including without limitation, via Third Party Offerings), and such third parties, and not Cofactor AI, are entirely responsible for such Data; (ii) you, and not Cofactor AI, are entirely responsible for all Data (if any) that you submit, upload, email, transmit or otherwise make available through the Services or to Cofactor AI, including ensuring the accuracy, completeness, and integrity of the Data; and (iii) you are solely responsible for giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders and permissions required under HIPAA) before submitting Data (if any) through or to the Services or Cofactor AI. You hereby grant Cofactor AI and its service providers a royalty-free, non-exclusive license to use, process, store, transmit, and reproduce your Data (including Aggregated Data) as necessary for Cofactor AI to provide you access to the Services.

(b) Cofactor AI Ownership. You acknowledge and agree that, as between you and Cofactor AI, Cofactor AI owns all right, title and interest (including all Intellectual Property) in and to the Services and Aggregated Data.

(i) In connection with your use of the Services, you may generate Analytics Reports on behalf of Customer as provided by the Services. Except as may be specifically set forth in any Additional Terms, Cofactor AI owns all right, title and interest (including all Intellectual Property) in and to the Analytics Templates and the Analytics Reports. Without limiting the foregoing, Cofactor AI will retain exclusive ownership of (i) all Cofactor AI know-how, concepts, techniques, methodologies, ideas, templates, software, interfaces, utilities and tools; (ii) all proprietary organization and structures for categorizing, sorting, and displaying materials, information and other data (including Customer Data) on the Services (including with respect to Analytics Templates and Analytics Reports); (iii) all updates, modifications, improvements, enhancements and derivative works of the Analytics Templates and the Analytics Reports conceived, discovered, developed or reduced to practice, solely or in collaboration with others, during the course of providing the Services hereunder, and (iv) in each case, all related Intellectual Property rights.

(ii) Subject to and conditioned on your compliance with this TOS, Cofactor AI hereby grants you a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use, display, distribute and create derivative works of the Analytics Reports during the Term (solely to the extent incorporated into the Analytics Reports) solely for the purposes authorized by Customer.

(iii) You are responsible for determining the accuracy and completeness of any Analytics Reports before relying on the Analytics Reports or providing or making available the Analytics Reports to any third party, including insurance providers.

(d) Feedback. If you elect to provide or make available to Cofactor AI any suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback (whether in oral, electronic or written form) related to the Services (“Feedback”), you hereby assign, at no charge, all rights, title and interests in Feedback to Cofactor AI, and agrees that Cofactor AI is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation. You warrant that the Feedback does not infringe any copyright or trade secret of any third party, and that you have no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by you). You further warrant that its Feedback is not subject to any license terms that would purport to require Cofactor AI to comply with any additional obligations with respect to any Services that incorporates your Feedback.

(e) Reservation of Rights. Cofactor AI reserves all rights not expressly granted under this TOS.

4. User CONDUCT and restrictions

(a) In your use of the Services, you will comply with this TOS, any Additional Terms, and usage guidelines and will not:

(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, make, have made, assign, pledge, transfer, or otherwise grant rights to the Services, except as expressly permitted under this TOS and any Additional Terms;

(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;

(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;

(iv) provide use of the Services on a service bureau, rental, or managed services basis, provide, or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;

(v) share your account or password with anyone;

(vi) disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services;

(vii) trick, defraud, or mislead us and other users, especially in an attempt to learn sensitive account information such as user passwords, personally identifiable information, or personal health information;

(viii) delete the copyright, trademark, or other proprietary rights notice from any content;

(ix) harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you;

(x) access the Services for the purpose of developing, marketing, selling, or distributing any product or service that competes with or includes features substantially similar to the Services;

(xi) violate any applicable local, state, provincial, federal, or international law or regulation, or use the Services for any illegal, unauthorized, or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;

(xii) remove or obscure any proprietary notice that appears within the Services;

(xiii) impersonate any person or entity, including Cofactor AI personnel, or falsely state or otherwise misrepresent your affiliation with Cofactor AI, or any other entity or person;

(xiv) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

(xv) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure;

(xvi) use spiders, crawlers, robots, scrapers, automated tools, or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services;

(xvii) rent, lease, lend, sell, or sublicense the Services, or otherwise provide rights to the Services to anyone or as part of a service bureau or similar fee-for-service purpose;

(xviii) use the Services to transmit Malicious Code;

(xix) use the Services as a substitute for any data license to which you are or reasonably should be a party;

(xx) use the Services in any way that is intended to contribute or constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. or in any other manner that is intended to contribute to or be construed as a consumer report by any governmental authority; or

(xxi) access or use the Services in any manner that does not comply with all applicable laws and regulations.

(b) Cofactor AI’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Cofactor AI, and does not create a private right of action for any other party.

5. DEALINGS WITH ADvertisers and Other Third Parties

The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that such terms and policies are solely between you and the advertiser or other third party. You agree that Cofactor AI does not endorse and is not responsible or liable for any issues related to Third Party Services.

6. DISCLAIMER OF WARRANTIES

(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COFACTOR AI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS.

(b) No Advice or Endorsement. You hereby acknowledge, understand and agree that: (i) you will not rely on the Services as a diagnostic, pharmaceutical, medical, or any other resource in providing healthcare or other services to patients or clients; (ii) Analytics Reports and any other content or information provided on the Services (“Services Materials”) are for informational purposes only; (iii) Services Materials are not intended to be, and you should not construe Services Materials as, legal, tax, investment, financial or other advice; (iv) nothing on the Services constitutes professional and/or financial advice, nor does any content or material provided on the Services constitute a comprehensive or complete statement of the matters discussed or the law or regulations relating thereto; (v) Cofactor AI is not a fiduciary by virtue of your use of or access to the Services; (vi) you alone assume the sole responsibility of evaluating the merits and risks associated with the use of or reference to the Services before making any decisions based on anything accessible on or through the Services; (vii) Cofactor AI shall not be held responsible or liable for any possible claim for damages arising from any decision you make based on information made available to you.

(c) THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).

7. Suspension and TERMINATION

(a) If you violate this TOS, Cofactor AI may, with or without notice, immediately suspend or terminate your access and use of the Services.

(b) Cofactor AI reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Cofactor AI shall not be liable to you or any third party for any such modification or discontinuance.

(c) Upon termination of this TOS for any reason: (i) Cofactor AI, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Cofactor AI shall not be liable to you or any third party for any termination of your account or access to the Services.

8. Indemnification

(a) COFACTOR AI SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF COFACTOR AI HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL COFACTOR AI’S TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES EXCEED $1,000.

(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. Governing Law

(a) This TOS shall be governed by and construed and enforced in accordance with the applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated. If for any reason a claim is filed in court, we agree that such claim shall be brought only in a court of competent jurisdiction in Travis County, Texas. You hereby submit to the personal jurisdiction and venue of such courts and waive any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any such claim.

10. GENERAL PROVISIONS

This TOS constitutes the entire agreement between you and Cofactor AI concerning your access to and use of the Services. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy, or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Cofactor AI hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty, or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.