Effective Date: June 7, 2023
"Authorized Coordinator" shall mean the HELPVUL Coordinator or an individual at ORGANIZATION so designated by the HELPVUL Coordinator as the individual responsible for inviting other members of ORGANIZATION to use the Platform.
"ELDERSCAN" shall mean Elderscan, LLC with a corporate address at 4701 Sangamore Road, #100N, Bethesda, Maryland 20816.
"EVERSAFE" shall mean Elderscan, LLC doing business as EverSafe.
"HELPVUL Coordinator" shall mean the individual so designated by ELDERSCAN to invite an Authorized Coordinator at an ORGANIZATION.
"ORGANIZATION" shall mean the organization specified by you during Registration.
"Organization Data" shall mean all: (i) Personal Information; (ii) all other data and information about any customers/clients/members of the ORGANIZATION (current, former or prospective), employees of the ORGANIZATION (current, former or prospective), and/or fields entitled "subject" or "client" entered or received by a Platform User on the Platform; (iii) all other data and information about any individuals identified by the ORGANIZATION as a suspected at-risk adult or associated with a suspected at-risk adult; (iv) data returned to the ORGANIZATION by a Third-Party Organization during Referral Processing; and (v) all Intellectual Property Rights in any of the foregoing.
"Platform" shall mean the HELPVUL platform as hereinafter described.
"Platform User" shall mean you, as the ORGANIZATION's employee or contractor who is approved by an Authorized Coordinator to use the Platform and who completes Registration.
"Referral Processing" shall mean the forwarding of Organization Data by ORGANIZATION to one or more Third-Party Organization(s) participating in the Platform for review, possible assignment, or forensic analysis, if requested, and the status update of the Referral by such Third-Party Organization(s), including the possible rejection and return of the Referral status to the ORGANIZATION and possible forwarding of the Referral to other Third-Party Organization(s) involved in the review of the Referral
"Registration" shall mean the process by which an ORGANIZATION employee or contractor shall register as a Platform User.
"Registration Requirements" shall mean the criteria by which an ORGANIZATION employee or contractor is eligible for Platform use. The individual must:
(a) have been approved and invited to be a Platform User by an Authorized Coordinator;
(b) be over the age of eighteen (18) years old;
(c) have completed the entry of all required fields (i.e. name, address, phone number, employer and email address) required during Registration, up to and including sign-on credentials. This information is required in order to utilize the Platform and to fulfill ELDERSCAN's obligation to provide the Platform services, including communicating with third parties as necessary to provide the Platform services; and
(d) be a current member of the ORGANIZATION, approved to use the Platform at the time of Registration and at all times during such time that the Platform is used.
"Subcontractor" shall mean any and all third parties providing services to or on behalf of ELDERSCAN in connection with the Platform, including, without limitation, Amazon Web Services ("AWS"), Twilio, and other third-party servicers. ELDERSCAN will not subcontract the provision of any services in connection with the Platform where the subcontractor will: (i) have access to ORGANIZATION's data; or (ii) provide a material component of the Platform without first performing due diligence into the financial and operational stability of the proposed subcontractor. For clarity, cloud and other hosting or storage service providers used by ELDERSCAN to provide any portion of the Platform are deemed subcontractors. ELDERSCAN will remain solely responsible for all Services performed by a subcontractor and will be liable for any subcontractor's failure to perform or abide by these Terms.
"Third-Party Organization" shall mean any party to whom the ORGANIZATION sends a referral via the Platform and any additional party participating on the Platform to whom a referral is sent or from whom a referral is received. Third-Party Organizations include, but are not limited to, Adult Protective Services and/or State Securities Regulators of Florida, North Carolina, Missouri, Montana, Pennsylvania, and San Francisco County, California.
2. Legally Binding Terms. These Terms set forth the binding agreement governing ORGANIZATION's use of the Platform.
3. Publicity. ELDERSCAN will not: (a) use the name, trademark, logo or other identifying marks of the ORGANIZATION in any sales, marketing or publicity activities or materials or (b) issue any press release, interviews or other public statement regarding this Agreement or the parties' relationship without the prior written consent of ORGANIZATION. ORGANIZATION may revoke such consent at any time and for any reason and ELDERSCAN will immediately cease use of the marks and will promptly remove all references to ORGANIZATION from all marketing and publicity materials.
ORGANIZATION will not: (a) use the name, trademark, logo or other identifying marks of EVERSAFE or HELPVUL in any sales, marketing or publicity activities or materials or (b) issue any press release, interviews or other public statement regarding this Agreement or the parties' relationship without the prior written consent of ELDERSCAN. ELDERSCAN may revoke such consent at any time and for any reason and ORGANIZATION will immediately cease use of the marks and will promptly remove all references to EVERSAFE and/or HELPVUL from all marketing and publicity materials.
4. The Platform. ELDERSCAN will provide the Platform, which will be used on behalf of the ORGANIZATION. The Platform will provide a standardized, unified online reporting platform for the ORGANIZATION to refer cases involving suspected at-risk adults ("Potential Victims") to agencies responsible for responding to such cases. Such agencies may include, but are not limited to, Adult Protective Services, state securities regulators, law enforcement, and prosecutors who work to protect suspected at-risk adults. The service will provide a standardized reporting process and enable agencies to investigate suspected financial exploitation of Potential Victims and, in appropriate cases, apply forensic analysis to financial records of the Potential Victims to help identify erratic activity.
6. Platform User Termination. A Platform User may end their use of the Platform at any time through the Platform or a Platform User's usage of the Platform may be terminated at any time by an Authorized Coordinator. If a Platform User is no longer authorized to use the Platform, an Authorized Coordinator will be responsible for ensuring the Platform User has been terminated from the Platform.
7. Security Measures. The Platform uses security measures designed to protect the privacy of Personal Information provided by the ORGANIZATION for the purposes of Referral Processing in utilizing the Platform. The HELPVUL Coordinator shall invite the Authorized Coordinator to use the Platform on behalf of the ORGANIZATION. The Authorized Coordinator shall assign all personal security access and passwords necessary to access and use the Platform and invite other Platform Users who shall assign personal security access and passwords necessary to access and use the Platform ("Access Codes"); and (A) ELDERSCAN shall provide ORGANIZATION with all tools, processes and permissions so that ORGANIZATION has the ability to fully and independently manage the Access Codes and otherwise manage access to the Platform, including facilitating use of ORGANIZATION's processes and tools for authentication and authorization (e.g. "federated" identity); (B) ORGANIZATION shall enable and disable access and accounts in a timely manner based on requests received from ORGANIZATION and as ORGANIZATION may otherwise reasonably require; (C) ELDERSCAN shall not retain Access Codes or related information except to the extent specifically agreed to in writing in advance by ORGANIZATION; and (D) ELDERSCAN shall not allow or enable access to ORGANIZATION assets used, or Organization Data outside the purposes of this Agreement.
ORGANIZATION agrees: (i) to maintain the security and confidentiality of any Access Codes, by which ORGANIZATION accesses the Platform; (ii) to not share or disclose Access Codes with any person other than ELDERSCAN; (iii) to prevent unauthorized access to or use of information, files or data that ORGANIZATION stores or uses in connection with the Platform; and that ELDERSCAN assumes that any instruction, authorization or consent transmitted to ELDERSCAN when the Platform is accessed using ORGANIZATION's Access Codes is the ORGANIZATION's and has been provided and sent by the ORGANIZATION. ORGANIZATION will be held responsible for all electronic communications, including Registration, case referral information, email address(es), and other data entered using the Access Codes. ELDERSCAN reserves the right to deny ORGANIZATION access to the Platform if it has reason to believe ORGANIZATION's Access Codes have been compromised or any loss, theft, or unauthorized use of Access Codes has occurred.
8. Changes to the Platform. The Platform may be changed by ELDERSCAN at any time and from time to time. All such changes shall be communicated by email to Platform Users not less than two (2) weeks prior to such changes being deployed on the Platform, unless such changes are part of a maintenance release. Continued use of the Platform following any such change shall be deemed acceptance of the change(s).
9. Security Breach. ELDERSCAN will immediately notify ORGANIZATION of any act or omission that compromises the integrity of Organization Data or systems used for transmitting, processing, storing or otherwise handling Organization Data, including any unauthorized or suspicious intrusion into such systems, improper access to or misuse of Organization Data, ELDERSCAN data, or ELDERSCAN internal security policy violations ("Security Breach"). In the event of a Security Breach, ELDERSCAN will fully cooperate with ORGANIZATION to investigate and remedy the Security Breach.
(a) Each party will make available to the other party nonpublic information that at the time of disclosure is identified as, or would reasonably be understood by the receiving party to be, proprietary or confidential ("Confidential Information"). Confidential Information may be disclosed in oral, written, visual, electronic or other form.
(b) ORGANIZATION's Confidential Information includes ORGANIZATION's: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information and fee structures; (iii) business processes, methods and models; (iv) employee, customer, business partner and supplier information; (v) hardware and system designs, architectures, structure and protocols; (vi) product and service specifications; (vii) manufacturing, purchasing, logistics, sales and marketing information; (viii) Organization Data; (ix) any communication from or on behalf of an ORGANIZATION user indicating a complaint with respect to Platform services or other Deliverables, or any ORGANIZATION product or service; (x) these Terms; and (xi) all Intellectual Property Rights in any of the foregoing.
(c) ELDERSCAN's Confidential Information includes ELDERSCAN's: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information and fee structures; (iii) business processes, methods and models; (iv) employee, customer, business partner and supplier information; (v) hardware and system designs, architectures, structure and protocols; (vi) product and service specifications; (vii) manufacturing, purchasing, logistics, sales and marketing information; (viii) any communication from or on behalf of an ELDERSCAN customer or user indicating a complaint with respect to Platform services or other Deliverables, or any ELDERSCAN product or service; (x) these Terms; and (xi) all Intellectual Property Rights in any of the foregoing.
(d) As between ORGANIZATION and ELDERSCAN, each party will own its Confidential Information. If a party obtains any rights in any Confidential Information of the other party, that party hereby assigns those rights to the other party.
Obligations; Limited Right to Use
(e) The receiving party will maintain Confidential Information in confidence, and except as otherwise expressly permitted under this Agreement or with the express prior written consent of the disclosing party, the receiving party will not disclose, transmit or otherwise disseminate in any manner any Confidential Information of the disclosing party to any third party. The receiving party will use the same care to avoid disclosure, transmission or dissemination of any Confidential Information received from the disclosing party as the receiving party uses with its own similar information (but in no event less than a reasonable degree of care). The receiving party will be liable for any unauthorized disclosure or use of Confidential Information by any of its employees, consultants, agents, subcontractors or advisors.
(f) ELDERSCAN will implement, maintain and test controls reasonably designed to ensure the security and integrity of systems on or through which ORGANIZATION Confidential Information is stored, accessed, processed or transmitted and cooperate with ORGANIZATION's commercially reasonable requests for assurances and evidence of the effectiveness of those controls. In addition to other obligations with respect to Organization Data, ELDERSCAN will implement and maintain (and require any of its subcontractors, sub-processors, agents and affiliates that have, process, or otherwise have access to Organization Data to maintain) appropriate administrative, technical, physical, logical, and organizational safeguards designed to: (i) ensure the security and confidentiality of Organization Data; (ii) protect against anticipated threats or hazards to the security or integrity of Organization Data; (iii) protect against unauthorized or unlawful access to or use of Organization Data and against accidental loss or destruction of, or damage to, Organization Data; and (iv) ensure that Organization Data and any associated hardware, system, or software are housed in physically secure premises with adequate fire protection and facility access controls.
(g) ORGANIZATION hereby grants ELDERSCAN and the Third-Party Organizations a non-exclusive, non-perpetual, non-sublicensable, limited right to use the Organization Data and other ORGANIZATION Confidential Information solely for ORGANIZATION's and Third-Party Organization's benefit to provide the Platform to ORGANIZATION and Third-Party Organizations pursuant to these Terms. ORGANIZATION reserves all rights in the Organization Data and other ORGANIZATION Confidential Information prior to the sending of the Organization Data or other ORGANIZATION Confidential Information to Third-Party Organizations.
(h) ELDERSCAN will disclose ORGANIZATION's Confidential Information only to ELDERSCAN personnel solely for the purpose of providing the Platform to ORGANIZATION and Third-Party Organizations. ELDERSCAN will not disclose Personal Information it receives, has access to, or processes in connection with these Terms outside of the United States set forth herein or otherwise agreed in writing by ORGANIZATION. ELDERSCAN may only pass-through rights to use ORGANIZATION Confidential Information to Third-Party Organizations and subcontractors to the extent ELDERSCAN is expressly allowed to do so in writing by ORGANIZATION or so instructed to through the use of the Platform by the ORGANIZATION or Third-Party Organizations (e.g., under these Terms) for the expressly stated purpose.
(i) ELDERSCAN will not: (i) attempt to or actually identify or re-identify any person or entity whose information may be included in any de-identified or aggregated information or data that it receives in connection with these Terms; (ii) attempt to or actually decrypt or unmask any encrypted or masked information or data that ELDERSCAN receives in connection with these Terms; (iii) use or reference any Organization Data, or any aggregate data or performance data derived from ORGANIZATION's Confidential Information or the Platform other than as expressly permitted under this Agreement or an Exhibit to this Agreement; or (iv) use Organization Data to contact any person, and in no event will any such contact involve marketing or solicitation of products or services.
Exceptions; Confidential Treatment
(j) The obligations set forth in this section do not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed prior to disclosure by the disclosing party, without an obligation of confidentiality; (ii) is or becomes publicly available without breach of these Terms by the receiving party, other than Personal Information; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of these Terms to potential parties to acquisition, divestiture or similar transactions to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospective or closed transaction, each party to that transaction using commercially reasonable efforts to limit the extent of the disclosure.
(k) If the receiving party is legally required to disclose any Confidential Information of the disclosing party in connection with any legal or regulatory proceeding, the receiving party will, if lawfully permitted to do so, endeavor to notify the disclosing party within a reasonable time prior to disclosure and to allow the disclosing party a reasonable opportunity to seek appropriate protective measures or other remedies prior to disclosure and/or waive compliance with the terms of these Terms. If these protective measures or other remedies are not obtained, or the disclosing party waives compliance with these Terms, the receiving party may disclose only that portion of that Confidential Information that it is, according to the opinion of counsel, legally required to disclose and will exercise all reasonable efforts to obtain assurance that confidential treatment will be accorded to that Confidential Information. However, nothing contained in these Term's will restrict ORGANIZATION's ability to disclose ELDERSCAN's Confidential Information to regulatory or governmental bodies asserting jurisdiction over ORGANIZATION.
Return or Destruction
(l) ELDERSCAN will return or destroy and procure the return or destruction of any of ORGANIZATION's Confidential Information other than ORGANIZATION's Confidential Information sent to a Third-Party Organization as part of Referral Processing which is in ELDERSCAN's possession or under ELDERSCAN's control (including that which is in the possession of a subcontractor or other third party), as soon as possible after the earlier of: (a) ORGANIZATION's commercially reasonable request (which request may identify specific Confidential Information to be returned or destroyed), or (b) the date ELDERSCAN no longer requires that Confidential Information to perform its obligations to ORGANIZATION and Third-Party Organizations. In such case(s), ELDERSCAN will provide ORGANIZATION with a certificate, signed by an officer of ELDERSCAN, certifying that all of that Confidential Information has been destroyed or returned to ELDERSCAN or its designee (e.g., ORGANIZATION's escrow agent).
(m) ORGANIZATION will return or destroy and procure the return or destruction of any of ELDERSCAN's Confidential Information in ORGANIZATION's possession or under ORGANIZATION's control (including that which is in the possession of a subcontractor or other third party), as soon as possible after the earlier of: (a) ELDERSCAN's request (which request may identify specific Confidential Information to be returned or destroyed), or (b) the date ORGANIZATION no longer requires that Confidential Information to perform its obligations to ELDERSCAN and Third-Party Organizations. In such case(s), ORGANIZATION will provide ELDERSCAN with a certificate, signed by an officer of ORGANIZATION, certifying that all of that Confidential Information has been destroyed or returned to ELDERSCAN.
11. Representations and Warranties.
THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY INFORMATION DELIVERED AS PART OF THE PLATFORM, IS PROVIDED "AS IS." ELDERSCAN DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED, OR ARISING OUT OF A COURSE OF DEALING OR USAGE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF COMPLETENESS, CORRECTNESS, CURRENTNESS MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE WITH DATA, AVAILABILITY, ACCURACY OR THAT THE PLATFORM IS ERROR-FREE.
(a) ELDERSCAN represents and warrants that: (i) it has obtained all rights, approvals and consents necessary to perform its obligations under these Terms; (ii) it will perform all of its obligations, and that the Platform will be, in compliance at all times with all federal and state statutes, orders, laws, rules regulations, self-regulatory standards, and regulatory interpretations and guidance applicable to ELDERSCAN in performing its obligations under these Terms ("Applicable Laws"); (iii) neither ELDERSCAN nor any individual, entity, or organization holding any material ownership interest in ELDERSCAN, nor any officer or director, is an individual, entity, or organization with whom any United States law, regulation, or executive order prohibits United States companies and individuals from dealing, including, without limitation, names appearing on the Specially Designated Nationals and Blocked Persons List (the "SDN List") and ELDERSCAN covenants to ORGANIZATION that it will not cause ORGANIZATION to be in violation of any regulation administered by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC"); and (iv) the Platform and any systems ELDERSCAN uses to provide the Platform do not and will not contain any computer code that is designed to disrupt, disable, harm, modify, delete or otherwise impede the operation of the Platform or any of ORGANIZATION's software, computer systems or networks, whether viruses, worms or otherwise.
(b) ELDERSCAN will indemnify, defend and hold harmless ORGANIZATION from any and all losses, liabilities, damages and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties (collectively, "Losses"), incurred by or threatened against ORGANIZATION or any of its officers, directors, employees, agents, successors or assigns arising from third party claims, demands, actions or threats of action (whether in law, equity or in an alternative proceeding) relating to the actual: (a) breach of ELDERSCAN's representations or warranties in these Terms; (b) infringement, violation or misappropriation of the Intellectual Property Rights of any third person by the Platform; (c) ELDERSCAN's breach of any of the confidentiality, or privacy provisions in these Terms; or (d) fraudulent, negligent, willful or reckless acts or omissions of or by ELDERSCAN (each, an "Indemnified Claim").
12. Limitation of Liability. THE PARTIES ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES ARISING FROM OR RELATED TO USE OF THE PLATFORM OR THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SOME JURISDICTIONS EITHER DO NOT ALLOW OR PLACE RESTRICTIONS UPON THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TYPES OF AGREEMENTS. FOR THESE JURISDICTIONS, THE AFOREMENTIONED LIMITATION OF LIABILITY SHALL BE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IF, NOTWITHSTANDING THE ABOVE LIMITATION, LIABILITY IS IMPOSED UPON ELDERSCAN, YOU AGREE THAT ELDERSCAN'S TOTAL LIABILITY TO YOU FOR ANY OR ALL OF YOUR DAMAGES, LOSSES OR OTHER INJURIES ARISING FROM ELDERSCAN'S ACTS OR OMISSIONS, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE CLAIM, SHALL NOT EXCEED THE AMOUNT PAID BY ORGANIZATION TO ELDERSCAN DURING THE SIX (6) MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO ANY SUCH LIABILITY.
13. Trademarks and Copyrights; Limited License.
ORGANIZATION acknowledges and agrees that ELDERSCAN's name, the HelpVul name and logo, the EverSafe name and logo, page headers and other terms, phrases, graphics, logos, and icons are common law or registered trademarks, Platform marks, and/or trade dress of ELDERSCAN (collectively "Marks"). ORGANIZATION agrees not to use any such content or Marks for any purpose. All other trademarks, Platform names, or logos not owned by ELDERSCAN that appear on the Platform are the property of their respective owners. All content included on the Platform, including the Marks and any other text, graphics, logos, button items, icons, images, and data compilation (collectively, "Content"), is the property of ELDERSCAN or its suppliers and is protected by United States and international copyrights laws. All software used on this Platform ("Software") is the property of ELDERSCAN or its software suppliers and is protected by United States and international copyright law. Reproduction of any Content, Mark, or Software, in whole or in part, is prohibited without prior written consent. ORGANIZATION is hereby granted, and agrees to accept, a limited, personal, revocable at will, non-exclusive and non-transferable license ("License") to use and to display the content, and to use the Platform and Software, solely for a Permitted Business Use (each as defined below). ORGANIZATION agrees that ORGANIZATION shall not: (i) have any other rights in or with respect to the Content, the Platform and/or the Software except as expressly set forth in this License; and/or (ii) directly or indirectly, individually or on behalf of any third party, modify, alter, decompile, disassemble, reverse engineer or attempt to copy or emulate the functionality, reverse compile or otherwise reduce to human readable form, create or attempt to create derivative works based on or derived from the Content, or in any way exploit the same (in whole or in part) for any commercial or business purpose, individually or on behalf of any third party, except for a Permitted Business Use. For purposes of these Terms, "Permitted Business Use" shall mean the use of the Platform for Referral Processing. The limited License granted by this Section shall immediately terminate and be of no further force and effect in the event of ORGANIZATION's failure to abide by any of these Terms, including the terms of the limited License as set forth above. By using the Platform, ORGANIZATION agrees that upon any such termination of the limited License, ORGANIZATION will immediately delete or destroy any Content (including any copies) in ORGANIZATION's possession and/or control, in whatever form or medium.
14. Governing Law. The interpretation and enforcement of these Terms shall, to the fullest extent permitted by applicable law, be governed by, construed and enforced in accordance with the laws of the State of Maryland without giving effect to any principles of conflicts of law.
15. Term. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue thereafter until terminated by either Party upon thirty (30) days advance written notice to the other Party.
17. Electronic Agreement and Signature. You intend and agree that a Platform User's electronic signature during the Registration process is intended to constitute the Platform User's legally binding signature to the fullest extent permitted by applicable law. The ORGANIZATION further agrees to receive all communications, notices and other information from ELDERSCAN electronically. If the ORGANIZATION does not agree to receive the notices and disclosures electronically, ELDERSCAN cannot provide the ORGANIZATION with use of the Platform. By using the Platform and executing these Terms, the parties acknowledge and agree that ORGANIZATION's usage of the Platform shall be governed by these Terms.