Aflow Health, Inc. Patient Portal Terms of Use

DISPUTE RESOLUTION: PLEASE BE AWARE THAT SECTION 14.1 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND AFLOW. AMONG OTHER THINGS, SECTION 14.1 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 14.1 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 14.1 CAREFULLY.

UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US THROUGH BINDING, FINAL ARBITRATION, WITH LIMITED EXCEPTIONS, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR OTHER REPRESENTATIVE PROCEEDING OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

1. Services. Aflow Health, Inc. (the “Aflow” or “we”) provides an online patient portal at portal.aflowos.com (the “Portal”) and the services available through it (the “Services”) on behalf of, and under agreement with, the healthcare practices that use the Portal to communicate with their patients (each, a “Practice”). The Portal allows patients of a Practice to (a) view certain health information made available to them by their Practice, and (b) send and receive secure messages with their Practice through the Portal. Individuals who use the Portal are each referred to as a “User” or “you” for purposes of these Terms of Use.

2. Invitation. The Portal is invitation-only. You may only create an account if you have been invited to do so by your Practice. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”), including the SMS terms described in Section 5.4 below, and such Supplemental Terms will either be listed in these Terms of Use or presented to you for acceptance when you sign up for the applicable Service. If these Terms of Use are inconsistent with any Supplemental Terms, the Supplemental Terms shall control. These Terms of Use and any applicable Supplemental Terms are referred to together as the “Terms.”

3. AGREEMENT. PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR USING THE PORTAL, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE AFLOW, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY, OR IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF ANOTHER INDIVIDUAL (SUCH AS IN A PARENT/GUARDIAN OR AUTHORIZED REPRESENTATIVE CAPACITY), YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE ON BEHALF OF SUCH INDIVIDUAL. THE TERM “YOU” REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER DURING THE REGISTRATION PROCESS ON THE PORTAL. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS PORTAL.

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY THE AFLOW IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, the Aflow will make a new copy of the Terms of Use available on the Portal, and any new Supplemental Terms will be made available from within, or through, the affected Service. We will also update the “Last Revised” date at the top of the Terms of Use. The Aflow may require you to provide consent to the updated Terms in a specified manner before further use of the Portal is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Portal. Otherwise, your continued use of the Portal constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE PORTAL TO VIEW THE THEN-CURRENT TERMS.

4. Generally

The Portal enables Users to view certain health information shared with them by their Practice and to send and receive secure messages with their Practice. The Portal is a communication and information-access tool only. The Aflow is not a healthcare provider, does not practice medicine, and does not provide medical advice, diagnosis, or treatment through the Portal. Any health information you view through the Portal is provided by your Practice, and any messages you exchange through the Portal are with your Practice and not with the Aflow. THE PORTAL IS NOT DESIGNED, INTENDED, AUTHORIZED OR WARRANTED TO BE SUITABLE FOR USE IN PRIMARY HEALTH MONITORING, LIFE SUPPORT APPLICATIONS, DEVICES OR SYSTEMS, OR ANY ENHANCED 911 OR E911 CALLING SYSTEMS, AND IS NOT INTENDED FOR USE IN A MEDICAL EMERGENCY. Messages you send through the Portal may not be reviewed by your Practice immediately. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, DIAL 911 OR GO TO THE NEAREST EMERGENCY ROOM. DO NOT USE THE PORTAL TO COMMUNICATE URGENT OR EMERGENCY MEDICAL NEEDS.

5. Accounts

5.1 Invitation Required. Access to the Portal is by invitation only. You may only register for an Account (as defined below) if your Practice has invited you to do so. Your Practice will send you an invitation, which will include a one-time SMS invite code (or a secure link containing such a code) sent to the mobile phone number your Practice has on file for you. You must enter this invite code, together with additional identifying information requested by the Portal (such as your name and date of birth), to complete registration. Invite codes are single-use, are intended only for the individual to whom they are issued, and expire after the period disclosed at the time of invitation. If you did not expect an invitation, believe you received one in error, or believe your invite code has been compromised, do not use it and contact your Practice.

5.2 Account Creation. In order to access the features of the Portal you are required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has successfully completed registration using a valid invite code from their Practice and registered an account (“Account”).

5.3 Registration Data. In registering for the Portal, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Portal’s registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old, or are registering as the parent, legal guardian, or authorized representative of a patient who is a minor or otherwise unable to register on their own behalf; (ii) of legal age to form a binding contract, or authorized to act on behalf of the patient as described above; and (iii) not a person barred from using the Portal under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account, including maintaining the confidentiality of your login credentials. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Aflow or your Practice has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Aflow has the right to suspend or terminate your Account and refuse any and all current or future use of the Portal. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself, except as expressly permitted for a parent, legal guardian, or authorized representative. You agree that you shall not have more than one Account per Practice at any given time. You agree not to create an Account or use the Portal if you have been previously removed by the Aflow or your Practice, or if you have been previously banned from the Portal.

5.4 SMS Communications; Consent.

(a) Portal Access Messages. When your Practice invites you to the Portal, and subsequently when you access the Portal, the Aflow sends a text message on behalf of your Practice to the mobile phone number your Practice has on file for you. These messages contain a one-time secure link and/or a one-time access code that, together with additional identifying information such as your name and date of birth, allow you to securely sign up for and subsequently log in to the Portal (“Portal Access Messages”). Portal Access Messages are transactional messages sent solely to authenticate your identity and provide secure access to your Account. They are not marketing or promotional messages, and message frequency will vary depending on how often you access the Portal.

(b) Consent. By enrolling in your Practice’s care program, whether in person or by telehealth, and providing your mobile phone number to your Practice, you agree and consent to receive Portal Access Messages, including invitation messages containing your SMS invite code, from or on behalf of the Aflow and your Practice at that number, including by means of an automatic telephone dialing system or similar technology, in accordance with the federal Telephone Consumer Protection Act (TCPA) and its implementing regulations. Your enrollment with your Practice, and the related consent to receive these messages, is documented in the Aflow’s and your Practice’s enrollment records. Consent to receive Portal Access Messages is not a condition of receiving any care or services from your Practice, except to the extent that receipt of such messages is necessary to access the Portal itself.

(c) Message and Data Rates; Opt-Out; Help. Message and data rates may apply to any text message you receive. You may opt out of receiving further text messages at any time by replying STOP to any message. If you opt out, you may lose the ability to receive SMS-based access to the Portal and may need to use an alternative method, if available, to log in; opting out will not affect any other services provided by your Practice. Reply HELP to any message for assistance, contact us at support@aflowhealth.com, or contact your Practice directly. Not all mobile phone carriers or handsets support all features of the Portal Access Messages, and delivery is not guaranteed. Aflow does not sell or share your mobile phone number or SMS opt-in information with third parties or affiliates for their own marketing purposes.

(d) Sent on Behalf of Your Practice. You acknowledge that Portal Access Messages, and any other communications you receive through the Portal, are sent by the Aflow on behalf of, and at the direction of, your Practice in order to facilitate your access to the Portal and your communications with your Practice.

6. Use of the Portal. The Portal is protected by copyright laws throughout the world.

6.1 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Portal or any portion of the Portal; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other mark (including images, text, page layout or form) of the Aflow; (c) you shall not use any metatags or other “hidden text” using the Aflow’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Portal except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Portal; (f) you shall not access the Portal in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Portal may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Portal. Any future release, update or other addition to the Portal shall be subject to the Terms. The Aflow, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Portal terminates the licenses granted by the Aflow pursuant to the Terms.

6.2 Data; Health Information. You acknowledge that all personal information collected, used, processed and shared by the Aflow through the Portal will be performed in accordance with the Aflow’s Privacy Policy available on the Portal. To the extent any personal data is “protected health information” as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), the Aflow will process such information in accordance with the business associate agreement the Aflow has in place with your Practice. Your Practice, and not the Aflow, is responsible for the accuracy, completeness and timeliness of the health information made available to you through the Portal. If you believe information displayed in the Portal is inaccurate or incomplete, you should contact your Practice directly; do not rely on the Portal as a substitute for direct communication with your Practice regarding your care.

6.3 Updates. You understand that the Portal is continually evolving. As a result, the Aflow may require you to accept updates to the Portal. You acknowledge and agree that the Aflow may update the Portal with or without notifying you. You may need to update third-party software from time to time in order to use the Portal.

6.4 Aflow Communications. By entering into these Terms or using the Portal, you agree to receive communications from the Aflow and, where applicable, on behalf of your Practice, including via e-mail, text message, calls, and push notifications, in each case as further described in Section 5.4 above with respect to SMS communications. Communications from the Aflow may include but are not limited to: operational communications concerning your Account or your use of the Portal, and responses to inquiries you submit through the Portal. Standard messaging and data charges applied by your mobile carrier will apply to text messages that we send.

7. Ownership

7.1 The Portal. You agree that the Aflow owns all rights, title and interest in the Portal. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Portal.

7.2 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of the Aflow. Nothing in this Section 7.2 limits your rights to access your own health information under HIPAA or other applicable law.

7.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to the Aflow through its suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that the Aflow has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to the Aflow a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Portal.

8. User Conduct. You agree that you will not, under any circumstances:

(a) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with the Portal;

(b) Interfere with or damage the Portal, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

(c) Modify or cause to be modified any files that are a part of the Portal;

(d) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support the Portal; or (ii) the use or enjoyment of the Portal by any other person, including your Practice’s staff;

(e) Disrupt or interfere with the security of, or otherwise cause harm to, the Portal, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Portal; or

(f) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by the Aflow, your Practice, or any other third party to protect the Portal.

9. Indemnification. You agree to indemnify and hold the Aflow, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Aflow Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of the Terms; (b) your violation of any rights of another party, including any Users or your Practice; or (c) your violation of any applicable laws, rules or regulations. The Aflow reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Aflow in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Portal. This provision does not require you to indemnify any of the Aflow Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Portal.

10. Disclaimers

10.1 General Disclaimers. THE PORTAL AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND AFLOW (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE PORTAL WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PORTAL AND SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

10.2 Not Intended For Emergency Medical or 911/E-911 Use. THE PORTAL IS NOT DESIGNED, INTENDED, AUTHORIZED OR WARRANTED TO BE SUITABLE FOR USE IN PRIMARY HEALTH MONITORING, LIFE SUPPORT APPLICATIONS, DEVICES OR SYSTEMS OR ENHANCED 911 OR E911 EMERGENCY CALLING SYSTEMS. Use of the Portal should not replace your good judgment and common sense. IF YOU ARE EXPERIENCING A MEDICAL OR OTHER EMERGENCY, DIAL 911.

10.3 Not a Substitute for Direct Communication with Your Practice. The Portal is intended solely to allow you to view information shared by your Practice and to exchange non-urgent messages with your Practice. The Portal is not intended or designed to provide medical advice, diagnosis, or treatment. Messages sent through the Portal are not monitored continuously or in real time. You should not rely on the Portal for time-sensitive or urgent communications, and should contact your Practice directly by telephone for any urgent matter.

11. Limitation on Liability

11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL AFLOW PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PORTAL, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT AFLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MESSAGES EXCHANGED WITH YOUR PRACTICE THROUGH THE PORTAL, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE PORTAL; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENTS OR CONDUCT OF YOUR PRACTICE OR ANY THIRD PARTY ON THE PORTAL; OR (4) ANY OTHER MATTER RELATED TO THE PORTAL, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AFLOW PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).

11.3 No Liability For Practice Conduct or Care Decisions. YOU ACKNOWLEDGE AND AGREE THAT THE PORTAL IS DESIGNED AS AN INFORMATION-VIEWING AND SECURE MESSAGING TOOL ONLY. THE AFLOW IS NOT RESPONSIBLE FOR THE CARE, TREATMENT, ADVICE, OR OTHER SERVICES PROVIDED BY YOUR PRACTICE, OR FOR THE CONTENT, ACCURACY, OR TIMELINESS OF ANY INFORMATION OR MESSAGES YOUR PRACTICE PROVIDES OR FAILS TO PROVIDE THROUGH THE PORTAL.

11.4 Exclusions. NOTWITHSTANDING THE FOREGOING, AFLOW DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN AFLOW PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN AFLOW PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AFLOW AND YOU.

12. Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Portal, unless terminated earlier in accordance with the Terms.

12.1 Termination of Terms by Aflow. Aflow may immediately and without notice, suspend or terminate these Terms for any reason, including, without limitation, if (i) you have materially breached any provision of the Terms, (ii) your Practice directs the Aflow to terminate or suspend your access, for example because you are no longer a patient of the Practice, or (iii) the Aflow is required to do so by law. You agree that all terminations for cause shall be made in the Aflow’s sole discretion and that the Aflow shall not be liable to you or any third party for any termination of your Account.

12.2 Termination of Terms by You. If you want to terminate the Terms provided by the Aflow, you may do so by closing your Account or by requesting that your Practice or the Aflow deactivate your Account.

12.3 Effect of Termination. Termination of these Terms includes removal of access to the Portal and barring of further use of the Portal. Termination of these Terms also includes disablement of your Account and of your associated password. Termination of your Portal Account does not affect your Practice’s obligation to maintain and provide access to your health records as required by HIPAA or other applicable law through means other than the Portal. All provisions of the Terms which by their nature should survive, shall survive termination of the Terms, including without limitation, ownership provisions, warranty disclaimers, limitation of liability, and Section 14.1 (Dispute Resolution).

13. Remedies

13.1 Violations. If the Aflow becomes aware of any possible violations by you of the Terms, the Aflow reserves the right to investigate such violations. If, as a result of the investigation, the Aflow believes that criminal activity has occurred, the Aflow reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Aflow is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Portal, in the Aflow’s possession in connection with your use of the Portal, to (1) comply with applicable laws, legal process or governmental request, (2) enforce the Terms, (3) respond to your requests for customer service, or (4) protect the rights, property or personal safety of the Aflow, your Practice, other Users, or the public.

13.2 Breach. In the event that the Aflow determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Portal, the Aflow reserves the right to:

(a) Warn you via e-mail (to any e-mail address you have provided to the Aflow) that you have violated the Terms;

(b) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or

(c) Pursue any other action which the Aflow deems to be appropriate, including suspension or termination of your Account.

13.3 No Subsequent Registration. If your registration(s) with or ability to access the Portal is discontinued by the Aflow due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Portal through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, the Aflow reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

14. General

14.1 DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Aflow and limits the manner in which you can seek relief from us.

(a) Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Aflow agree that any disagreement, controversy, or claim arising out of or relating in any way to your access to or use of the Portal, any Services, any communications you receive (including SMS communications under Section 5.4), or the Terms and prior versions of the Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Aflow may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Aflow may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that were not noticed at the time you first became subject to these Terms but that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.

(b) Informal Dispute Resolution. There might be instances when a Dispute arises between you and Aflow. If that occurs, Aflow is committed to working with you to reach a prompt, low-cost and mutually beneficial resolution. You and Aflow agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Aflow agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate. To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Aflow should be sent by email to legal@aflowhealth.com or regular mail to our offices located at 8605 Santa Monica Blvd PMB 930504 West Hollywood, California 90069. The Notice must include: (1) your name, telephone number, mailing address, and e-mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of the Dispute, including the specific relief sought. Aflow will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date. The Notice must be signed by the party initiating the Dispute. The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. The Informal Dispute Resolution Conference, if requested by either party, shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. The statute of limitations and any filing deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

(c) Waiver of Jury Trial. YOU AND AFLOW HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Aflow are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

(d) Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection are invalid or unenforceable as to a particular claim or request for relief, you and Aflow agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all Disputes between the parties that remain in arbitration are finally resolved. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Aflow from participating in a class-wide or mass settlement of claims.

(e) Rules and Forum. The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. Section 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, or after completion of the Informal Dispute Resolution Conference, if requested, you and Aflow agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration, and the account username (if applicable), as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to Aflow should be sent by email to legal@aflowhealth.com or regular mail to our offices located at 8605 Santa Monica Blvd PMB 930504 West Hollywood, California 90069. Aflow will provide the Demand to your email or regular address on file. It is your responsibility to keep your contact information up to date. If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address, and such counsel must also sign the Demand certifying, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b), that the Demand is not frivolous or improper. Unless you and Aflow otherwise agree, or the Batch Arbitration process discussed below is triggered, the arbitration, including any in-person arbitration hearing, will be conducted, at your election, in the State of Delaware or the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”). You and Aflow agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. You and Aflow agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.

(f) Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process below is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.

(g) Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of such subsection is unenforceable, illegal, void or voidable, or that such subsection has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

(h) Attorneys’ Fees and Costs. Unless fee shifting is specifically authorized by law or by the NAM Rules, the parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.

(i) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Aflow agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against Aflow by or with the assistance of the same law firm, group of law firms, or organizations, within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible. All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.

(j) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@aflowhealth.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Aflow username (if any), the email address you used to set up your Aflow account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

(k) Severability. Except as provided in the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. However, if the Batch Arbitration subsection of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in the State of Delaware.

(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Aflow.

(m) Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Aflow makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Aflow at the following address: legal@aflowhealth.com.

14.2 Electronic Communications. The communications between you and Aflow use electronic means, whether you use the Portal or send us emails or text messages, or whether Aflow posts notices on the Portal or communicates with you via email or text message. For contractual purposes, you (a) consent to receive communications from Aflow in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Aflow provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.

14.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without the Aflow’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

14.4 Force Majeure. The Aflow shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

14.5 Governing Law. The Terms and any action related thereto, other than as set forth in the subsection entitled “DISPUTE RESOLUTION” above, will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

14.6 Notice. Where the Aflow requires that you provide an e-mail address or mobile phone number, you are responsible for providing the Aflow with your most current contact information. In the event that the last e-mail address or phone number you provided to the Aflow is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, the Aflow’s dispatch of the communication containing such notice will nonetheless constitute effective notice. You may give notice to the Aflow at the following address: Aflow Health, Inc., 8605 Santa Monica Blvd PMB 930504 West Hollywood, California 90069. Such notice shall be deemed given when received by the Aflow by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

14.7 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.8 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

14.9 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.