ARxCHANGE® USER AGREEMENT TERMS AND CONDITIONS

THIS ARxCHANGE® USER AGREEMENT (the "Agreement")is made and entered into between the TriCap Health Group, LLC d/b/a TriCap Technology Group ("TriCap" or "TriCap Technology Group") and you as the User (the "User").

Whereas TriCap is engaged in the business of operating a web site and related software systems (collectively referred to as the “ARxChange®”) for the purpose of facilitating the disposition of Medical Receivables portfolios from hospitals, physician practices, healthcare Debt Providers and other credit extenders (collectively the “Debt Providers” or individually the “Debt Provider”) to Recovery or Servicing Agents, Revenue Cycle Companies, Collection Agents and Buying Firms (collectively the “Bidders” or individually the “Bidder”);

Whereas ARxChange® includes patented methods (patent #7,949,597) and highly proprietary and conidential information from TriCap, including but not limited to speciic Debt Provider and Bidder company information, speciic debt iles and/or portfolios, online methods of collecting delinquent specialized debt, debt portfolio and bid data, speciic ARxChange® related software, systems, tools and designs, and the business systems, knowhow, and methods of TriCap, the Debt Providers and Bidders (collectively “Conidential Information”);

Whereas the User seeks access to the ARxChange® and related Conidential Information for the express purpose of evaluating the potential use of ARxChange’s systems and processes to further the User’s business aims;

Whereas the ARxChange® is a web based platform undergoing continuing development and programming that may be subject to changes, adjustments, modiications and errors that effect the availability and operation of all functions;

Whereas the User represents that it has the power, authority and desire to enter into and perform its obligations under this Agreement and is knowledgeable and experienced in the servicing, sale or purchase of performing and non-performing distressed debt and receivables. User acknowledges that he/she or any other User employee(s) involved in the ARxChange® process have not been convicted of any crime involving or related to the management, recovery, collections or billing of medical receivables. User also acknowledges that he/she is knowledgeable and experienced in the compliance requirements contained within the Privacy Standards and Security Standards as stated under the Health Insurance Port-ability and Accountability Act of 1996 (“HIPAA”).

Now therefore, in consideration of the mutual promises set forth herein, and for all other good and valuable consideration, the receipt, adequacy and suficiency of which are hereby acknowledged, the parties hereby agree as follows:

  • The term of this Agreement is effective either upon acceptance by the User and/or the User’s formal registration by TriCap on the ARxChange® platform, and will continue unless terminated by TriCap at its sole discretion (the “Term”).
  • Upon acceptance of this Agreement and formal ARxChange® registration, TriCap agrees to provide the User with unique user name and password access to the ARxChange® system and grant the User a limited, non-exclusive license to utilize the ARxChange® for the duration of said Term.
  • User acknowledges that the ARxChange® is a feebased member’s only system and that TriCap maintains exclusive control of all access and rights to the system to access the and, as a result, may revoke or limit the User’s privileges at any time without notice or cause for any reason whatsoever.
  • User agrees to not use any device, software, or routine to interfere or attempt to interfere with any application, function or use of the ARxChange® system. The User shall not decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code of the software, tools, methods, processes or infrastructure underlying the ARxChange® process or system
  • User acknowledges that receivables/debt portfolio(s) or bid(s), which will include a reference to the User’s name, will be viewable by Debt Providers, Bidders and other Users registered on the ARxChange® during the disposition period.
  • Users acknowledge that Debt Providers have the right to attach proprietary terms, at the Debt Provider’s sole discretion, to any submitted portfolio listed on the ARxChange®. The Bidder acknowledges that such terms, if listed, are an integral part of the portfolio and disposition bid process and any bid made is based on the Bidder’s acceptance of those terms as a condition said bid.
  • Bidder represents and warrants that is has presecured funding or has access to credit lines suficient to cover and consummate any bid placed through TriCap via the ARxChange®. Bidder also agrees to process debt portfolios/iles in accordance with the “Code of Conduct” rules listed on the ARxChange ®. Bidder acknowledges that the Debt Providers have relied on such agreement as an important condition of their decision to post debt portfolios on the ARxChange®.
  • User shall be solely responsible for the content, accuracy, integrity and completeness of any information comprising any data or records delivered to TriCap for listing on the ARxChange®. The User agrees not to post any debt portfolio(s), bid(s), or any other data or information on the ARxChange® containing false, inaccurate, misleading, defamatory, fraudulent, or libelous content. User represents and warranties that it is the legal and rightful owner of any and all accounts, iles, and records on any and all portfolios posted for disposition on the ARxChange®; and that the accounts within the portfolio are free of any and all encumbrances and liens, and that the User is in possession of and can provide to TriCap all legal documentation showing a clear chain of custody and title for said portfolios. User represents and warranties that it will not provide any false or misleading information as to the authenticity of the portfolio’s ownership, its historical chain of custody, its inherent value, or any information related to historical collection performance activities, including the pace of such recoveries. The User agrees that none of the records, data, information, or portfolios provided for posting are involved in or part of any active and/or ongoing litigation with a third party that may impact title and/or the successful transfer of asset ownership or otherwise delay or prevent a successful disposition of said asset from taking place post ARxChange® disposition and award. The User agrees that the guarantor names, addresses, account numbers, social security numbers, tax I.D. numbers, and all other information provided on accounts within the portfolios is accurate. The User agrees that any data or information posted on the ARxChange® will be listed in good faith for the purposes of which this site is intended and that bids, once submitted and accepted, are nonretractable and binding. The User represents and warrants that is has secured all necessary and requisite rights required from within its own organization or any other requisite entity with a claim against the User’s organization prior to engaging TriCap and listing any portfolio or submitting or accepting any bid on the ARxChange®.
  • User acknowledges that speciic information posted on the ARxChange ® is provided by Debt Providers, Bidders and other Users who are independent third parties and, therefore, the User will not hold TriCap responsible for the accuracy and completeness of the content or for any actions or inactions of other Users. User agrees to release TriCap, its oficers, directors, employees, agents, and related parties from claims, demands and damages (actual or consequential) of every nature, known or unknown, arising out of or in any way connected to disputes between the User and other Users.
  • User acknowledges that all information with regards to ARxChange® processes and transactions is conidential and thus TriCap may suffer irreparable harm if any disclosure is made. User agrees to treat such information in a manner consistent with User’s own conidential and proprietary business information and further agrees not to share such Conidential Information with any internal or external parties that do not have a “need to know” for the purposes of which this site is intended. This information may be provided by TriCap to more than one User and is not exclusive to the User and that such lack of exclusivity shall, in no way, be deemed to affect the enforceability of this Agreement or invalidate any of the terms or conditions contained herein.
  • User acknowledges that any and all scoring, sorting and segmentation lists, statistics and information, as well as the charts, graphs or other manner of representation of such information presented on or through the ARxChange® is provided for informational, grouping, and organizational purposes only. Thus, it is solely the User’s re-sponsibility to determine whether or not to engage in any ARxChange® transaction based solely upon its own independent examination, study, inspection and knowledge of the merits of said ARxChange® bad debt portfolio opportunities and as such has relied solely upon its own evaluation of the quality, value, condition and marketability of such Debt and not on any statement, information, representation or promise made or to be made by TriCap in connection with said process. Thus, any information, advice or opinions provided by TriCap should not be used as the sole determinant in making a inal portfolio acquisition decision via the ARxChange ®. TriCap makes no such guarantees as to the validity and/or accuracy of said opinions provided. Any acquisition or investment decision should be based solely upon the User’s own thorough and detailed analysis of the investment or acquisition opportunity and potential return horizons.
  • TriCap shall have the right to reject any data submitted by the User for posting on the ARxChange® if, in TriCap’s reasonable judgment, the posting of such data would or could constitute a violation of applicable law, rules, regulations, directives, or executive, administrative or judicial orders or decrees.
  • Debt Provider will notify TriCap within fortyeight (48) hours following the close of an ARxChange® listing event of its decision to consummate the awarding of a debt portfolio. TriCap will notify the Bidder of the decision. Immediately subsequent to notiication the Debt Provider and Bidder will proceed with all due haste to consummate the transaction. The Bidder will request from the Debt Provider all required underwriting information necessary to close and fund the transaction. The Debt Provider will provide all required underwriting information necessary to effectuate a close and funding of the transaction, including but not limited to, a completed purchase application, submitting to background checks, and providing detailed account level information to afirm and validate the idelity of the debt and performance history of said asset placed on the ARxChange ® for disposition. Failure to request or provide such information will be deemed a breach of these User Terms and Debt Provider and/or Bidder will be responsible for all damages incurred by TriCap. Upon funding, TriCap will process the entire purchase payment from the Bidder to the Debt Provider, net of all TriCap’s fees as follows: The Bidder will forward to TriCap the entire purchase or guarantee payment amount inclusive of TriCap fees (these fees may include registration, IT, and standard ARxChange® placement fees). TriCap will then process said payment, once received, and forward on to the Debt Provider (or Seller) the agreed upon purchase price less any TriCap fees as described herein. The User agrees that this payment processing protocol will remain in effect throughout any recurring archive or forward low transactions associated with any ARxChange ® disposition awards throughout the duration of the Term.
  • User acknowledges that TriCap has the right to assess fees for any and all products or services provided on or through the ARxChange® and further acknowledges that such fees may be added or changed over time as determined by TriCap at its sole discretion. Such fees include registration and transaction fees charged to both Debt Providers and Bidders. These fees may include, but are not limited to, ARxChange® analytics dashboard fees, account level scoring, skip tracing and/or “scrubbing” fees, annual membership fees, portfolio management fees, posting fees, software licensing fees, User setup fees, advertising fees and any other additional services fees for speciic products, services or information ordered and provided to said User by TriCap. All such fees or fee statements will be deined on the ARxChange ®, or expressly provided to User at the time such services are offered. Upon conclusion of an ARxChange® disposition event the Debt Provider is under no obligation to choose any of the bids generated through the ARxChange® disposition process if said bids are not believed to be in the best interests of the Debt Provider. However, if the Debt Provider chooses not to proceed with said bids the Debt Provider will be assessed a minimal ARxChange® posting fee of $7,500.
  • User agrees that ARxChange® transaction fees (minimum of 5% commission on face value of transaction) will be assessed to the User for any consummated transactions occurring on, through, or as a result of the posting of said receivables portfolio(s) on the ARxChange®, and/or through any recurring archive and forward low postings associated in any way with "onetime" receivables portfolio postings. User understands and agrees that they are obligated to pay TriCap's fees for any "one-time" ARxChange® postings and for any recurring forward low debt portfolio transactions that result from said "onetime" listings. Users understands that the transaction fees assessed to Users may take the form of a lat fee or percentage of the winning bid as deined for each debt portfolio. User acknowledges that fees may be assessed by TriCap to both Debt Providers and Bidders and such fees will be paid above and beyond any negotiated purchase price or fee exchange between the Debt Provider and Bidder. Such fees shall be paid to TriCap by the User at the time the transaction is completed on a one-time or forward low basis. User acknowledges that all fees along with the entire purchase price for any auction posted on the ARxChange® (and for recurring forward low fees and purchase prices resulting from the any auction posted on ARxChange®) will be processed in accordance with Section 13
  • The User agrees to indemnify, defend (through attorneys reasonably acceptable to TriCap and its successors and assigns) and hold TriCap and all oficers, directors, employees, and agents of TriCap harmless from and against any and all pending or threatened claims, causes of action, damages, losses, costs (including reasonable and necessary attorney's fees) and liabilities of any nature, which may at any time be assessed against or suffered by TriCap directly or indirectly relating to or arising out of a breach of this Agreement by the User.
  • While using the ARxChange®, Users will not:

    a.Violate any laws; or third party rights or terms and conditions posted by TriCap including, but not limited to, the “ARxChange® Code of Conduct”. .

    b.Take any action that may dilute, interfere, circumvent or undermine the consummation of an awarded transaction, or the competitive bid and auction process associated with recurring forward low trade events, including (but not limited to):
      • Manipulating the bidding and/or the bidding price;
      • Engaging in frivolous bidding activity such as withdrawing transmitted bids for reasons unre-lated to inal due diligence reviews that reveal material deviations in the asset;
      • Not requesting or providing necessary underwriting information to consummate the transac-tion;
      • Not completing transactions for reasons unrelated to due diligence that reveal material devia-tions in the asset;
      • Placing bids or causing bids to be placed for the purpose of artily increasing or otherwise manipulating the bidding process;
      • Submitting bids after conspiring in concert with other Bidders to artiicially inlate or delate prices;
      • Directly or indirectly contacting Debt Providers or Bidders during an auction event and/or recurring forward low transactions to negotiate "offline" or side arrangement agreements designed to circumvent in any way the ARxChange® process and/or TriCap fees;
      • Factually misrepresent information on the ARxChange® Seller Survey and any historical receivables/debt performance and/or liquidation records provided;
      • Unbundle recurring forward low portfolios from "onetime" trade events in a manner to circumvent TriCap fees;
      • Soliciting TriCap to organize Bidders for an ARxChange® trade event and then bypass TriCap for recurring forward low transactions involving the bidding community TriCap originally organized on behalf of the Debt Provider; or
      • Posting any other false, inaccurate, misleading information that in any manner may dilute the integrity of the auction event.
    c. Distribute viruses or any other technologies that may harm the ARxChange® or the interests of ARxChange® Users.

    d.Copy, modify, or distribute content from the ARxChange® or harvest or otherwise collect information about Users, including email addresses.
  • Users understand and agree that when transmitting or accepting bids, they are entering into a legally binding contract and if they are identi as the winning bidder and/or accept an offer as the winning bid, they are bound to consummate the transaction in a timely fashion and pay any associated fees to TriCap in the same timely fashion.
  • The User acknowledges and agrees that TriCap will suffer irreparable damage upon the User’s breach of this Agreement and that such damages shall be dificult to quantify. The User acknowledges and agrees that TriCap may ile an action to enforce the terms of this Agreement against the User, in addition to any other remedy TriCap may pursue.
  • The parties agree that, except as contained herein, no warranty, express or implied, is made with respect to the ARxChange®. TriCap does not warrant that the functions contained in the ARxChange® process will meet the User’s requirements, or will operate in the manner desired by the User, or that the ARxChange® process will be error free, or free from unauthorized intrusion. TriCap shall not, under any circumstances, be liable to the User or any other person for any special, incidental, consequential, or other damages resulting from the use of the ARxChange®, including, without limitation to, the reliance by any entity/person on information obtained through the ARxChange®. This may include scoring and segmentation statistics provided, virus transmission, or the deletion or loss of iles or e-mail, the loss of data or information of any kind, the loss of proit, or any liability to third parties, however caused, whether by the act or negligence of TriCap or otherwise. The maximum liability of TriCap for any and all loss, claims, damage or liability of any kind hereunder shall be limited to the amount of any service fees paid by the User to TriCap under this Agreement.
  • TriCap may amend this Agreement at any time by posting the amended terms on the ARxChange®. Except as stated elsewhere, all amended terms shall automatically be in effect upon their posting.
AMENDMENT TO ARxCHANGE® USER AGREEMENT TERMS AND CONDITIONS

This Addendum sets out the responsibilities and obligations of ARxChange Users in order to comply with the use and handling of Protected Health Information (“PHI”) and Electronic Protected Health Information (“ePHI”) under the Standards for Privacy of Individually Identiiable Health Information, 45 C.F.R. §§ 160.103, 164.501 et. seq., as amended from time to time (“Privacy Standards”) and Standards for the Protection of Electronic Protected Health Information, 45 C.F.R. §§ 160.103, 164.302, et seq., as amended from time to time (“Security Standards”). Unless otherwise provided, all capitalized terms in this Addendum will have the same meaning as provided under the Privacy Standards or Security Standards. Users will comply with the terms of this Addendum for the duration of their registration on the ARxChange and for such other continuing periods as provided in this Addendum.

  • Uses and Disclosures of Protected Health Information. User will use and disclose PHI only for those purposes necessary to perform its duties, obligations and functions under the ARxChange User Agreement Terms and Conditions, or as otherwise expressly permitted in this Addendum or required by other law. User will not use or further disclose any PHI in violation of this Addendum.
  • Safeguards. User will implement appropriate safeguards to prevent any use or disclosure of PHI not otherwise permitted in this Addendum. User will also implement Administrative, Physical and Technical Safeguards to protect the Conidentiality, Integrity, and Availability of the electronic PHI, if any, that User creates, receives, maintains, or transmits on behalf of Facility.
  • Reports of Impermissible Use of Disclosure. User will report to TriCap any use or disclosure of PHI not permitted by this Addendum within ten (10) business days of User’s learning of such use or disclosure. User will also report to TriCap any Security Incident and any information related to the Security Incident required by TriCap policy and applicable federal and state law of which it becomes aware that affects electronic PHI created, received, maintained or transmitted, if and, on behalf of TriCap, as soon as reasonably possible, but in no event more than two (2) business days following User’s discovery of such Security Incident. User agrees to mitigate, to the extent practicable, any harmful effect that is known to User of a use or disclosure of Protected Health Information or ePHI by User in violation of the requirements of this Addendum, the Privacy Standards or Security Standards as reasonably directed by Facility.
  • Agents and Subcontractors. If User provides PHI or ePHI to an agent or subcontractor for a purpose authorized under the Agreement and this Addendum, User will irst enter into a contract with the agent or subcontractor that requires the agent or subcontractor to agree to the same restrictions and conditions applicable to User’s use and disclosure of PHI, as set forth in this Addendum. User will maintain a list of any such disclosures to agents or subcontractors as provided in this Addendum.
  • Obligations Regarding User Personnel. User will appropriately inform all of its employees, agents, representatives and members of its workforce (“User Personnel”), whose services may be used to satisfy User’s obligations under the Agreement and this Addendum of the terms of this Addendum. User represents and warrants that the User Personnel are under legal obligation to User, by contract or otherwise, suficient to enable User to fully comply with the provisions of this Addendum.
  • Access to PHI. TriCap
    • Access. Within twenty (20) business days of a request by TriCap for access to PHI held by User, User will make requested PHI available to TriCap.
    • Patient Access. If a Patient requests access to PHI directly from User, User will within twenty (20) business days forward such request in writing to TriCap.
  • Accounting of Disclosures; Requests for Disclosure.
  • Disclosure Records. User will keep a record of any disclosure made to its agents, subcontractors or other third parties for any purpose other than necessary to perform its duties, obligations and functions under the ARxChange User Agreement Terms and Conditions, or as otherwise expressly permitted in this Addendum or required by other law.
  • Data Regarding Disclosures. For each disclosure for which User must maintain documentation under paragraph 7a, User will record and maintain the following information:
    • The date of disclosure;
    • The name of the entity or person who received the PHI,and,the address of such entity or person, if known
    • A description of the PHI disclosed; and
    • A brief statement of the purpose of the disclosure.
  • Provision of Records to Facility.User will provide a copy of its record of each disclosure to TriCap required by paragraph 7 within ten (10) business days following the request by TriCap. In addition, within five (5) business days following receipt of a notice from TriCap, User will also provide a copy of all disclosure records in its possession required by paragraph 7.
  • Patient Request for Disclosure Records.Within thirty (30) business days of receipt of a notice from TriCap to User of a Patient’s request for an accounting of PHI, User will provide TriCap with the records of disclosures requested in the notice. User will provide the records for the time period requested by the Patient on which the accounting was requested by the Patient, as set forth in the notice.
  • Patient Request to User. If a Patient requests an accounting of disclosures directly from User, User will forward the request to TriCap within ten (10) business days of User’s receipt of the request, and will make its records of disclosures available to TriCap as otherwise provided in this Section. User will not provide an accounting of its disclosure directly to the Individual.
  • User Use for Management and Administration. User may use PHI for the necessary management and administration of User, or to carry out the legal responsibilities of the User if:
    • The disclosure is required by law; or
    • User secures written assurance from the receiving party that the receiving party will:
      • hold the PHI confidentially;
      • use or disclose the PHI only as required by law or for the purposes for which it was disclosed to the recipient; and
      • notify the User of any breaches in the confidentiality of the PHI.
  • TriCap Provision of Information to User on Restrictions.If TriCap advises User of any changes in, or restrictions to the permitted use or disclosure of PHI provided to User, User will restrict use or disclosure of PHI consistent with TriCap’s instructions.
  • Responsibilities upon Termination of registration on the ARxChange
    • Return of PHI; Destruction.Within ninety (90) days of termination of registration on the ARxChange, User will return to TriCap all PHI received from TriCap or created or received by User on behalf of TriCap which User maintains in any form or format, and User will not maintain or keep in any form or format any portion of the PHI. Alternatively, User may, upon TriCap’s written consent, destroy all such PHI and provide written documentation of such destruction. The requirement to return or destroy such PHI will apply to all agents or subcontractors of User. User will be responsible for recovering any PHI from such agents or subcontractors. If User cannot obtain the PHI from any agent or subcontractor, Agent will so notify TriCap and will require that such agents or subcontractors directly return PHI to TriCap or otherwise destroy such PHI, subject to the terms of this Section.
    • Alternative Measures. If User believes that returning or destroying PHI at the termination of the Agreement is infeasible, it will provide written notice to TriCap within thirty (30) business days of the effective date of termination of the Agreement. Such notice will set forth the circumstances that User believes makes the return or destruction of PHI infeasible and the alternative measures that User recommends for assuring the continued conidentiality and security of the PHI. TriCap promptly will notify User of whether it agrees that the return or destruction of PHI is infeasible. If the TriCap agrees that return or destruction of PHI is infeasible, User agrees to extend all protections, limitations and restrictions of this Addendum to User’s use or disclosure of PHI retained after termination of this Agreement and to limit further uses or disclosures to those purposes that make the return or destruction of the PHI infeasible. Any such extended protections, limitations and restrictions will apply to any agents or subcontractors of User for whom return or destruction of PHI is determined by TriCap to be infea-sible. If TriCap does not agree that the return or destruction of PHI from User or its agents or subcontractors is infeasible, TriCap will provide User with written notice of its decision, and User, its agents and subcontractors will proceed with the return or destruction of the PHI pursuant to the terms of this Section within ifteen days of the date of Facility’s notice
  • Termination.TriCap immediately may terminate User’s participation on the ARxChange if TriCap determines in its discretion that the User has breached a term of this Addendum.
  • User Books and Records.
    • TriCap Access.User will,within (5) ive business days of TriCap’s written request, make available during normal business hours at User’s ofices, all records, books, agreements, or policies and procedures relating to the use or disclosure of PHI for the purpose of allowing TriCap to determine User’s compliance with the Agreement and this Addendum.
    • Government Access. User will make its internal practices, books and records on the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services to the extent required for determining compliance with the Privacy Standards and any other provisions of HIPAA and HIPAA regulations. Notwith standing this provision, no attorney client, accountant-client or other legal privilege will be deemed waived by User or TriCap as a result of this Section.
  • Notices. Any notices required under this Addendum will be sent to the parties.
  • Indemnification. User will indemnify, defend and hold TriCap and its oficers, directors, employees, agents, successors and assigns harmless, from and against any and all losses, liabilities, damages, costs and expenses (including reasonably attorneys' fees) arising out of or related to any thirdparty claim based upon any breach of this Addendum by User or similar breach by its agents or subcontractors ("Claim"). If User assumes the defense of a Claim, TriCap shall have the right, at its expense, to participate in the defense of such Claim, and User shall not take any inal action with respect to such Claim without the prior written consent of Facility. This Section applies only to the terms and conditions of this Addendum. This Section shall survive termination of the Agreement and/or this Addendum and is without regard to any limitation or exclusion of damages provision otherwise set forth in the Agreement.
  • PHI Disclaimer and Ownership. PHI AND EPHI IS PROVIDED TO USER SOLELY ON AN "AS IS" BASIS. TRICAP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. As between TriCap and User, any PHI and ePHI disclosed, delivered or provided to User in connection with the Agreement, shall be deemed to be the exclusive property of Facility. In no event shall User or its subcontractors claim any rights with respect to such PHI or ePHI. Neither User nor its agents or subcontractors shall transfer or export any ePHI or PHI provided by TriCap outside the United States.