SOFTWARE-AS-A-SERVICE AGREEMENT

This Software-as-a-Service Agreement (this “Agreement”) is entered into as of the date set forth on the signature page hereto (the “Effective Date”), by and between Prepared Health, Inc., a Delaware corporation (“Service Provider”), and the customer set forth on the signature page hereto (“Subscriber”). 

WHEREAS, Subscriber desires to procure access to certain software and related services from Service Provider, and Service Provider desires to provide such software and related services to Subscriber, pursuant to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions. The following capitalized terms used in this Agreement are defined as follows:
    1. Action” means any claim, suit, action, litigation or proceeding.
    1. “Additional Services” means the Service Provider’s additional support, maintenance, training, consulting and other services provided by Service Provider to Subscriber as set forth in an Order Form.
    1. Affiliate” means in relation to a Person, any entity which, directly or indirectly, controls or is controlled by, or is under common control with, that Person, where control is the possession, directly or indirectly, of (i) alone or pursuant to an agreement with other members, a majority of the voting rights in it, (ii) the power to direct or cause the direction of the management or operating policies of the entity through the exercise of voting rights, contract, trust or otherwise, or (iii) a right to appoint or remove the majority of the directors of the entity, and  Affiliates” means any of them.
    1. Authorized User” means the Subscriber’s Workforce authorized to access the Software and Services by Subscriber and Service Provider, and any other individuals authorized to use the Software and Services as identified in each Order Form.
    1. BAA” means a Business Associate Agreement entered into by and between Service Provider and Subscriber.
    1. Business Hours” means 8:30 am Central Time through 5:30 p.m. Central Time, Monday through Friday and excluding national United States holidays.
    1. Client” means a person who receives care from Subscriber or an Affiliate of Subscriber. 
    1. Effective Date” has the meaning set forth in the introductory paragraph.
    1. Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
    1. Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance provider.
    1. “Order Form(s)” means separate agreement(s) to be entered into by and between Service Provider and Subscriber as to the specific Software and other Services being provided to Subscriber in accordance with Section 2.1
    1. Permitted Use” means the allowable use of the Services by Subscriber and its Affiliates, as set forth on each Order Form.  For purposes of clarity, the following constitute non-Permitted Use(s): (i) copying, modifying or creating derivative works of the Software or PH Materials; (ii) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring or otherwise making available any Services or PH Materials to any Person, including on or in connection with the internet or any software as a service, cloud or other technology or service, except for as described in the Permitted Use; (iii) reverse engineering, disassembling, decompiling, decoding, adapt or otherwise attempting to derive or gain access to the source code associated with the Software, in whole or in part; (iv) bypassing or breaching any security device or protection used by the Software or PH Materials or access or use the Software or PH Materials other than by an Authorized User through the use of his or her own access credentials; (v) inputting, uploading, transmitting or otherwise providing to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (vi) damaging, destroying, or otherwise interfering with the Software or the provision of services by Service Provider to any third party, in whole or in part; (vii) removing, altering or obscuring any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or PH Materials, including any copy thereof; (viii) accessing or using the Software or PH Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Property Rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any customer), or that violates any applicable Law; and/or (ix) accessing or using the Software or PH Materials for purposes of competitive analysis of the Software or PH Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Service Provider’s detriment or commercial disadvantage.
    1. Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
    1. PH Materials” means the Software and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Service Provider in connection with the Services or otherwise comprise or relate to the Services.
    1. Proprietary Rights” means any and all intellectual property, industrial property or proprietary rights throughout the world, whether registered or unregistered, including rights in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contracts, confidential or proprietary information, trade names, domain names, trade dress, trademarks, and service marks, and all other similar rights. 
    1. Services” has the meaning set forth in Section 2.1.
    1. Service Provider” has the meaning set forth in the introductory paragraph.
    1. Software” means any software applications, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Service Provider provides remote access to and use of as part of the Services, as further described in the applicable Order Form(s).
    1. Subscriber” has the meaning set forth in the introductory paragraph.
    1. Subscriber Data” means any information, images, records, files, forms, documents and data entered into, processed, stored or transmitted by or for Subscriber using the Service Provider. 
    1. Term” has the meaning set forth in Section 5.1.
    1. Update” means any improvement, enhancement, modification and/or change to the Software offered or provided by Service Provider, including any customization or other development made for Subscriber.  Once incorporated into the Software, an Update shall be deemed part of the Software and will be communicated to users simultaneously. All Updates made by the Service Provider are solely the property of the Service Provider.
    1. Workforce” means Subscriber’s and its Affiliates’ employees and other members of its workforce, including caregivers, administrative staff, students, trainees, contractors and other service providers providing care to Clients on behalf of Subscriber. 
  1. Provision and Use of Services.
    1. Services. Subject to and conditioned on Subscriber’s and Subscriber’s Authorized Users’ compliance with the terms and conditions of this Agreement and the Order Form(s), Service Provider shall provide to Subscriber the services (including, if applicable, the Software) described in the applicable Order Form(s) (collectively, the “Services”).  Service Provider reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to maintain or enhance the quality or delivery of Service Provider’s services to its customers, the competitive strength of or market for Service Provider’s product offerings, the Services’ cost efficiency or performance, or to comply with applicable Law.  Service Provider is providing the Services to Subscriber on a nonexclusive basis. 
    1. Authorization; Permitted Use(s). Subject to and conditioned on Subscriber’s payment of the fees and compliance and performance in accordance with the terms and conditions of this Agreement, during the Term Service Provider hereby authorizes Subscriber to access and use the Services and such PH Materials as Service Provider may supply or make available to Subscriber solely for the Permitted Use(s) as set forth on the applicable Order Form(s).   
    1. Additional Services. If requested by Subscriber, Service Provider will provide Subscriber with Additional Services to be described on an Order Form between the parties.
    1. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Proprietary Rights in or relating to, the Services or the PH Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the PH Materials are and will remain with Service Provider.
    1. Service and System Control. Except as otherwise expressly provided in this Agreement or an applicable Order Form, Service Provider has and will retain sole control over the operation, provision and maintenance of the Services and PH Materials, the location where any of the Services are performed, and the maintaining, upgrading, correcting, repairing and/or replacing of any applicable Software.
    1. Suspension of Services. Service Provider may temporarily suspend Subscriber’s access to or use of all or any part of the Services or PH Materials without incurring any resulting obligation or liability, if: (a) Service Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Service Provider to do so; or (b) Service Provider has reason to believe that Subscriber or its Authorized User(s) are, have been or are likely to become involved in fraudulent, misleading or unlawful activities. This Section does not limit any of Service Provider’s other rights or remedies, whether at law, in equity or under this Agreement.
    1. Service Level.  Service Provider will use commercially reasonable efforts to make the Software accessible for use by Subscriber.  Service Provider reserves the right to interrupt the Software to conduct routine maintenance (“Scheduled Maintenance”) or emergency maintenance. Service Provider provides a support desk staffed during Business Hours.  Support desk requests can be initiated using the customer support email (support@preparedhealth.com) or by Internet chat capabilities within the Software.  Service Provider provides expedited support services, priority routing of issues, a designated support email, and remote diagnostic services.  All such requests are entered into a support management and tracking system which is used to track the issue from the time it was reported until it has been resolved.  Service Provider will provide email support for the Software according to the severity of the issue, and not necessarily in the order in which the issue was received.  Service Provider will determine the request priority and will respond in accordance with the following priority codes:

Severity

Description

Committed Response Time (during Business Hours in all cases)

Critical

Issue with the Software definitively and materially adversely impacts patient care.

Within one (1) hour of initial report.

Customer updates every one (1) hour until resolution. 

High

Issue does not appear to adversely impact patient care or cause financial liability but is repeatedly affecting a customer’s usage of the Software.

Within four (4) hours of initial report.

Customer updates every four (4) hours until resolution. 

Medium

Issue does not materially impact the operation or use of the Software.

Within a Business Day after initial report.

Customer updates upon next mutually agreed time.

Low

Issue in the system which does not have any effect on normal operations

Provide updates bi-annually and add the issue into the software release schedule that meets the service providers release schedule.

  1. Fees and Payment.
    1. Fees. Subscriber shall pay to Service Provider fees for the Services as set forth in the Order Form.  Unless otherwise specifically superseded by the terms set forth in an Order Form, the fees due for Services will increase by 5% from the then-current fee levels upon each 12 month anniversary of the Effective Date.
    1. Taxes.  All fees and charges are exclusive of taxes.  Subscriber will be responsible for the payment of all taxes associated with this Agreement (other than taxes based on Service Provider's net income).  If Subscriber is exempt from sales tax, a valid exemption certificate provided by Subscriber will be provided to Service Provider reasonably in advance of any billing.     
    1. Payment Terms.  All fees and charges will be due and payable in advance of Services performed.  Subscriber will complete, execute and maintain in full force and effect during the term of this Agreement a valid, up-to-date authorization for recurring billing in the form required by Service Provider.   Subscriber will pay any invoices issued by Service Provider within 30 days of the invoice date.  If Subscriber fails to pay any charges when due, Service Provider reserves the right to charge interest on any outstanding balance at the lesser of 1.5% per month or the maximum rate allowable by Law.      
  1. Subscriber Responsibilities.
    1. Subscriber Computer Systems.  Subscriber is responsible for the security of its own computer systems and the security of its Authorized Users’ access to the Software and otherwise in connection with the Services.  Subscriber will be solely responsible for providing and maintaining its own Internet access and all necessary telecommunications equipment, software and other materials necessary for Authorized Users to access and use the Software and associated Services.   
    1. User IDs.  Subscriber will set up each Authorized User with a unique user login and password (“User ID”) for his or her access to the Software.  Subscriber will ensure that its Authorized Users will use only their respective assigned User IDs and will never use another’s User ID.  Subscriber will adopt and maintain security precautions for User IDs to prevent their disclosure to and use by unauthorized persons.  
    1. Authorized Users.  Subscriber will (a) authorize only members of its Workforce or individuals authorized that are providing care to Client as Authorized Users; (b) remain responsible for all obligations under this Agreement arising in connection with any of its Authorized Users’ use of the Software or other Services; and (c) be directly liable for any act or omission by any of its Authorized Users, which, if performed or omitted by Subscriber, would be a breach of this Agreement.   
    1. Authorization; Non-Infringement.  Subscriber is responsible for obtaining all authorizations, consents, releases, and permissions necessary or desirable to enter Subscriber Data into the Software, to use the Software to process and store Subscriber Data and to otherwise obtain, access, or receive the Services.  Subscriber and its Authorized Users will not submit any Subscriber Data or use the Services in any way that infringes, misappropriates, or violates any Proprietary Right, any right of publicity or privacy, or any other right of any third party or violates any applicable Law.    
    1. PROFESSIONAL RESPONSIBILITY. THE SOFTWARE AND THE SERVICES ARE NOT A PERSONAL EMERGENCY RESPONSE SYSTEM AND SHALL NOT BE USED FOR ACUTE CRISIS MANAGEMENT OR REAL TIME MONITORING.  THE SERVICES ARE ONE COMPONENT OF CARE SERVICES BETWEEN SUBSCRIBER AND ITS CLIENTS; IT IS SOLELY THE RESPONSIBILITY OF SUBSCRIBER, ITS WORKFORCE AND EACH CLIENT’S THIRD-PARTY CAREGIVERS TO MAINTAIN COORDINATED AND/OR DIRECT CHANNELS OF CARE AND COMMUNICATIONS TO HELP PROTECT THE SAFETY, SECURITY, HEALTH, AND WELL-BEING OF CLIENTS. SUBSCRIBER, AND NOT SERVICE PROVIDER, SHALL HAVE SOLE RESPONSIBILITY TO CARE FOR THE CLIENTS.   SERVICE PROVIDER WILL NOT BE HELD LIABLE FOR ANY HEALTH CARE AND/OR PROFESSIONAL SERVICES THAT SUBSCRIBER OR ITS AUTHORIZED USERS, OR ANY OTHER PERSON, PROVIDES TO CLIENTS, INCLUDING ALL PATIENT CARE DECISIONS RESULTING FROM OR INVOLVING THE USE OF THE SUBSCRIBER DATA OR THE SERVICES.  SERVICE PROVIDER MAKES NO REPRESENTATIONS CONCERNING THE COMPLETENESS, ACCURACY, OR UTILITY OF ANY SUBSCRIBER DATA IN THE SOFTWARE OR CONCERNING THE QUALIFICATIONS OR COMPETENCE OF ANY AUTHORIZED USER THAT MAY PLACE SUBSCRIBER DATA IN THE SOFTWARE.  NEITHER SUBSCRIBER NOR ANY OTHER PERSON WILL HAVE ANY CLAIM OR CAUSE OF ACTION AGAINST SERVICE PROVIDER AS A RESULT OF ANY PATIENT CARE OR OTHER SERVICES RENDERED OR WITHHELD IN CONNECTION WITH THE USE OF THE SUBSCRIBER DATA OR THE SERVICES.
  1. Term and Termination.   
    1. Term. Unless otherwise terminated pursuant to the terms of Section 5.2 below, this Agreement commences on the Effective Date and continues for one year from the Effective Date (the “Initial Term”), and shall automatically renew for unlimited, consecutive one year terms after the Initial Term (each, a Renewal Term,” and collectively, the Initial Term with all Renewal Terms, if any, being the “Term”).    
    1. Termination. Either of the parties may terminate this Agreement only as follows:

5.2.1 Either party may terminate this Agreement if the other party materially breaches this Agreement, effective on written notice to the other party if such material breach is incapable of cure; provided, if such material breach is capable of cure, the termination shall be effective only if such material breach remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach;

5.2.2 Either party may terminate this Agreement prior to the start of a Renewal Term by providing written notice to the other party at least ninety (90) days prior to the start of such Renewal Term;   

5.2.3 Either party may terminate this Agreement effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, and in the case of an involuntary petition, such involuntary petition is not removed within sixty (60) days of its filing; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction in connection with bankruptcy or other similar proceedings; and/or

5.2.4 If Service Provider determines in its sole discretion that it will no longer provide the Services as a generally available, commercial offering, Service Provider may terminate this Agreement or any applicable portion of the Services being provided under certain Order Form(s) for end of life at any time by providing one hundred eighty (180) days written notice to Subscriber.

    1. Effect of Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

5.3.1 All rights, licenses, consents and authorizations granted by Service Provider to the Subscriber under this Agreement and/or any Order Form(s), including Subscriber and its Authorized Users’ use of any Services or PH Materials, will immediately terminate;

5.3.2 Subscriber shall destroy all documents and tangible materials containing, reflecting, incorporating or based on any PH Materials or Service Provider’s Confidential Information, permanently erase all PH Materials and Service Provider’s Confidential Information from all Subscriber Systems, and, upon Service Provider’s request, certify to Service Provider in a signed, written instrument by an officer of Subscriber that Subscriber has complied with the requirements of this Section 5.3;

5.3.3 If Subscriber terminates this Agreement pursuant to Section 5.2.1, Subscriber will be relieved of any obligation to pay any fees on the terminated Order Form(s) attributable to the period after the effective date of such termination and Service Provider will refund to Subscriber any fees paid in advance for Services on such Order Form(s) that Service Provider has not performed as of the effective date of termination; and/or

5.3.4 If Service Provider terminates this Agreement pursuant to Section 5.2.1, all fees that would have become payable under the terminated Order Form(s) (the “Guaranteed Fees”) will become immediately due and payable, and Subscriber shall pay such Guaranteed Fees, together with any previously-accrued but not yet paid fees, on receipt of Service Provider’s invoice therefor.

    1. Force Majeure.  In no event will Service Provider be liable or responsible to Subscriber or any other Person, or be deemed to have defaulted under or breached this Agreement or such Order Form(s), for any failure or delay in fulfilling or performing any term of this Agreement or such Order Form(s) when and to the extent such failure or delay is caused by any circumstances beyond Service Provider’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority; provided, however, Subscriber may terminate the affected Order Form(s) pursuant to Section 5.2.2 above if a Force Majeure Event continues uninterrupted for a period of 60 days or more.  In the event of any failure or delay caused by a Force Majeure Event, Service Provider shall give prompt written notice to Subscriber stating the period of time the occurrence is expected to continue and Service Provider shall use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    1. Surviving Terms. The rights and obligations of the parties in Articled 3-8 and Article 10 of this Agreement shall survive termination of this Agreement. 
  1. Proprietary Rights.
    1. Software.  The PH Materials and any results therefrom, including, without limitation, data obtained from the use of the Services, as well as any other works, information and/or other materials provided Service Provider or accessible to Subscriber in connection with this Agreement, including all Proprietary Rights therein (collectively, the “Service Provider IP”), shall remain exclusively vested in and be the sole and exclusive property of Service Provider. The domain names used, product names and logos associated with the Services are trademarks of Service Provider, and no right or license is granted to use them.
    1. Feedback. To the extent that Service Provider receives from Subscriber or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, recommendations, enhancement requests, error identifications or other information related to the Software or any other Service (collectively, “Feedback”), Service Provider may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other Services, and any such Feedback incorporated into the Services shall become additional Service Provider IP. 
    1. Data. 
      1. Subscriber Data.  Subscriber grants to Service Provider a non-exclusive, fully-sub-licensable, fully-transferable license to use Subscriber Data in connection with the provision of the Services or otherwise in connection with the performance of its obligations or exercise of its rights under this Agreement and for any other lawful purpose in connection with Service Provider’s business.  Subject to the foregoing license, Subscriber will retain all Proprietary Rights in and to the Subscriber Data.
      1. De-identified Subscriber Data. The Subscriber acknowledges that a portion of the Services provided by the Service Provider may have analysis of de-identified Client PHI, usage metrics, client data metrics, population-based data and other data gathered from the usage of the Software and its components. Such data includes but is not limited to the type of system being used to access the Software, GPS coordinates of the Authorized User at the time of usage, length of time on the system, contents of the information entered and other related data as in respect to the usage of the system and the de-identified information entered related to Clients. 
      1. Opt-In Services. To provide the maximum benefit to the Subscriber, certain service offerings from the Service Provider or affiliated third parties may be offered to the Client within the application as an in-app purchase. No offers will be made without first receiving a positive opt-in acknowledgment from the Client allowing Service Provider to utilize the Client’s PHI to make such recommendations. No Client PHI shall be exposed to any third party in making such recommendations for service/product offerings and at no time shall client PHI be exposed to any third party without the applicable Client’s express consent as an additional acknowledgement within the Software application. 
  1. Confidentiality.
    1. Protected Health Information.  With respect to the provision of Software by Service Provider as set forth in this Agreement and the protection of Subscriber’s Protected Health Information, Service Provider acknowledges and agrees that when the Subscriber is a Covered Entity it may be acting as the Subscriber’s business associate (as defined in the administrative simplification provision of the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”)) and that it will comply with the BAA entered into separately between Subscriber and Service Provider.  In addition, the Subscriber agrees to maintain current Business Associate Agreements with any third party covered entities that the customer shares PHI with in respect to the care of patients and that such sharing meets HIPAA guidelines.
    1. Service Provider.  Subscriber acknowledges and agrees that information in any form or medium (whether oral, written, electronic or other) that the Service Provider reasonably considers confidential or proprietary, including, without limitation, the Service Provider IP, which the Subscriber gains access to in connection with this Agreement (collectively, the “Confidential Information”), is the confidential information of the Service Provider and shall remain the sole property of the Service Provider.  Confidential Information does not include information that the Subscriber can demonstrate by written or other documentary records: (a) was rightfully known by Subscriber without restriction on use or disclosure prior to such information being disclosed or made available to the Service Provider in connection with this Agreement; (b) was or becomes generally known by the public other than by the Subscriber’s or any of its Authorized Users’ noncompliance with this Agreement; (c) was or is received by the Subscriber on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) Subscriber can demonstrate by written or other documentary records was or is independently developed by the Subscriber without reference to or use of any Confidential Information.   
    1. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, Subscriber shall: (a) not access or use Confidential Information other than in accordance with this Agreement; (b) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (c) ensure its Authorized Users’ compliance with, and be responsible and liable for any of its Authorized Users’ non-compliance with, the terms of this Article 7.
    1. Compelled Disclosures. If Subscriber or any of its Authorized Users is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, Subscriber shall: (a) promptly, and prior to such disclosure, notify the Service Provider in writing of such requirement so that the Service Provider can seek a protective order or other remedy or waive its rights under this Article 7; and (b) provide reasonable assistance to the Service Provider, at the Service Provider sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Service Provider  waives compliance or, after providing the notice and assistance required under this Article 7, the Subscriber remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Subscriber is legally required to disclose and, on the Service Provider’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
  1. Service Limitations; Disclaimer; Limitation of Liability.
    1. Service Limitations.  Service Provider may make improvements and/or changes in the Software at any time. Service Provider will provide reasonable notice for scheduled maintenance, however, disruptions considered extraordinary to normal operations may result in delayed notice. Service Provider will not be responsible for any damages that Subscriber may suffer arising out of use, or inability to use, the Software.  Service Provider will not be liable for unauthorized access to or alteration, theft or destruction of Subscriber’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method.  Subscriber acknowledges that it is Subscriber’s responsibility to validate for correctness all output and reports and to protect Subscriber’s data from loss by maintaining back-ups of all data and routinely updating such back-ups. Subscriber hereby waives any damages occasioned by lost or corrupt data, incorrect reports or incorrect data files, or resulting from a programming error, operator error, equipment or software malfunction or from the use of third-party software.
    1. Disclaimer of Warranties.  SERVICE PROVIDER MAKES NO WARRANTIES RELATED TO THE SERVICES PROVIDED BY SERVICE PROVIDER HEREUNDER AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  SERVICE PROVIDER DOES NOT WARRANT THAT THE OPERATION OF ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SERVICE PROVIDER ALSO MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF ANY SERVICES.
    1. Limitations of Liability. 
      1. IN NO EVENT WILL EITHER PARTY BE LIABLE, UNDER ANY THEORY, INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY), FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE THE ABOVE LIMITATION OR EXCLUSION WILL NOT APPLY.
      1. EXCEPT IN CONNECTION WITH SERVICES PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE  LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY ORDER FORMS) EXCEED THE FEES RECEIVED BY SERVICE PROVIDER FROM THE SUBSCRIBER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST ACTION OR INACTION GIVING RISE TO LIABILITY OCCURRED. 
      1. SUBSCRIBER UNDERSTANDS AND AGREES THAT SERVICE PROVIDER IS NOT A MEDICAL PROVIDER TO ANY CLIENT AND SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY MEDICAL DIAGNOSIS, TREATMENT, ADVICE, INTERPRETATIONS OR INTERVENTIONS. USE OF THE SERVICE PROVIDER IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A HEALTH CARE PROFESSIONAL IN DIAGNOSING AND TREATING CLIENTS.  SUBSCRIBER ACKNOWLEDGES ITS RESPONSIBILITY FOR VERIFYING THE ACCURACY OF CLIENT INFORMATION AND FOR ALL MEDICAL DECISIONS OR ACTIONS WITH RESPECT TO THE MEDICAL CARE, TREATMENT AND WELL-BEING OF CLIENTS, INCLUDING ALL OF SUBSCRIBER’S ACTS OR OMISSIONS IN TREATING ANY CLIENT.  ANY USE OR RELIANCE BY SUBSCRIBER UPON THE SERVICE PROVIDER SHALL NOT DIMINISH THAT RESPONSIBILITY.  SUBSCRIBER FURTHER UNDERSTANDS THAT CLIENTS' MEDICAL RECORDS AND INFORMATION TRACKED BY THE SOFTWARE OR SERVICES MAY CONTAIN INFORMATION THAT ONLY A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL CAN INTERPRET.  THE SERVICES ARE NOT INTENDED FOR MEDICAL DECISION MAKING.  SUBSCRIBER AGREES THAT SUBSCRIBER AND/OR ITS CLIENTS WILL CONTACT CLIENT'S MEDICAL PROVIDER(S), AS APPROPRIATE, REGARDING QUESTIONS OR CONCERNS RELATING TO ANY CLIENT’S MEDICAL CONDITIONS, MEDICAL RECORDS, OR HEALTH CARE DATA TRACKED BY THE SOFTWARE.  SUBSCRIBER AGREES NOT TO HOLD SERVICE PROVIDER LIABLE FOR ANY MEDICAL CONDITIONS, INJURIES OR HEALTH-RELATED PROBLEMS OR FOR CIRCUMSTANCES RESULTING FROM ANY CLIENT’S AND/OR SUBSCRIBER'S FAILURE TO CONSULT WITH SUCH CLIENT’S PHYSICIAN AND MEDICAL PROVIDERS.
  1. Indemnification.
    1. Service Provider Indemnification. Service Provider shall indemnify, defend and hold harmless Subscriber and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Subscriber Indemnitee”) from and against any and all Losses incurred by such Subscriber Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Subscriber Indemnitee) that arise out of or relate to: (i) Service Provider’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (ii) any allegation in such Action that Subscriber’s use of the Services in compliance with this Agreement (including the Order Forms) infringes a U.S. Proprietary Right; or (iii) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Service Provider. The foregoing indemnification obligation of Service Provider shall not apply to any Action or Losses that are in part caused by Subscriber’s breach of this Agreement or any Order Form, or Subscriber’s gross negligence or more culpable act or omission.
    1. Subscriber Indemnification. Subscriber shall indemnify, defend and hold harmless Service Provider and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Service Provider Indemnitee”) from and against any and all Losses incurred by such Service Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Service Provider Indemnitee) that arise out of or relate to: (i) Subscriber’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (ii) Service Provider’s use of any materials, information, documents, data, specifications, software, content or technology provided by or on behalf of Subscriber or any Authorized User to Service Provider, including, without limitation, that such  use violates or infringes a U.S. Proprietary Right of a third party; or (iii) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, its Authorized Users or Clients.
    1. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Article 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
    1. Mitigation. If any of the Services or PH Materials are, or in Service Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Proprietary Right, or if Subscriber’s or any Authorized User’s use of the Services or PH Materials is enjoined or threatened to be enjoined, Service Provider may, at its option and sole cost and expense: (a) obtain the right for Subscriber to continue to use the Services and PH Materials materially as contemplated by the applicable Order Form(s);  (b) modify or replace the Services and PH Materials, in whole or in part, to seek to make the Services and PH Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and PH Materials, as applicable, under the applicable Order Form(s); or (c) by written notice to Subscriber, terminate this Agreement with respect to all or part of the Services and PH Materials, and require Subscriber to immediately cease any use of the Services and PH Materials or any specified part or feature thereof, provided, subject to Subscriber’s compliance with its post-termination obligations set forth in Section 5.3, Subscriber will be entitled to a refund of a proportionate amount of any pre-paid fees for such limited or terminated use of the Services and PH Materials.
  1. General.
    1. Subscriber Assignment, Successors.  Subscriber shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement or any Order Form, in each case whether voluntarily, involuntarily, by operation of Law or otherwise, without Service Provider’s prior written consent, which consent Service Provider shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Subscriber (regardless of whether Subscriber is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement and the Order Form(s) for which Service Provider’s prior written consent is required.  Any purported assignment, delegation or transfer in violation of this Section 10.1 is void. This Agreement and the Order Form(s) are binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns
    1. Construction. Whenever used in this Agreement, unless otherwise specified the terms “includes”, “including”, “e.g.”, “for example”, “such as”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter. The headings of sections and subsections of this Agreement are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of this Agreement.
    1. Entire Agreement.  This Agreement, along with the Order Form(s) and the BAA, constitute the entire agreement, understanding and representations, expressed or implied, between Service Provider and Subscriber with respect to subject matters described herein and supersedes all prior communications, agreements, representations, warranties, statements, negotiations, understandings and proposals with respect to such subject matters. To the extent there is a conflict between the terms of and Order Form and this Agreement, the terms of this Agreement shall control except where the terms of the Order Form expressly contradict this Agreement by reference to the provision that is unavailing. To the extent there is a conflict between the terms of the BAA and this Agreement, the terms of this Agreement shall control except where the terms of the BAA expressly contradict this Agreement by reference to the provision that is unavailing. Except as otherwise set forth herein, this Agreement may not be modified, amended, waived, or deleted, except in in a document signed by authorized representatives of Subscriber and Service Provider.  Subscriber agrees that Subscriber's purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Service Provider regarding future functionality or features.
    1. Governing Law; Submission to Jurisdiction.  This Agreement and the exhibits, schedules, attachments and appendices hereto shall be governed by the internal Laws of the State of Illinois, without regard to its conflict of laws provisions.  Any Action with respect to this Agreement and the exhibits, schedules, attachments and appendices hereto or any matter arising out of or in connection with this Agreement shall be brought exclusively in state or federal courts located in Cook County in the State of Illinois.  By execution and delivery of this Agreement, each party hereto hereby accepts for itself and its Affiliates, generally and unconditionally, the sole and exclusive jurisdiction of the aforesaid courts and appellate courts thereof.  Each party hereto hereby irrevocably and unconditionally waives any objection which such Person may now or hereafter have to the laying of venue of any of the aforesaid Actions arising out of or in connection with this Agreement brought in the courts referred to above and hereby further irrevocably waives and agrees, to the extent permitted by applicable Law, not to plead or claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum.  Final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. 
    1. Waiver of Jury Trial. EACH PARTY HERETO, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT OR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
    1. Marketing.  Service Provider may use Subscriber’s name, logo and website as part of a general list of customers and may refer to Subscriber as a user of the Service Provider in its advertising, marketing and promotional materials. Service provider shall provide to Subscriber any materials that will be used for advertising, marketing and promotional material 30 days prior to release for review and approval. Further, any previous materials approved by Subscriber will be deemed to be pre-approved and will no longer need to be approved 30 days prior to release.
    1. Notice.  All notices required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt.  The notice address for each of Service Provider and Subscriber is set forth on the signature page attached hereto.   Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
    1. Waiver; Severability.  Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right.  If any provision herein will be held by a court of competent jurisdiction to be contrary to Law, that provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by Law, and the remaining provisions herein will remain in full force and effect.   
    1. Audit.  During the Term and for one (1) year after its termination or expiration, Service Provider (or its duly authorized representative) may conduct an audit of the books and records (electronic or otherwise) of Subscriber that specifically pertain to the obligations of Subscriber under this Agreement or any Order Form(s) that were in effect within the one year period immediately prior to the termination or expiration of this Agreement, including, but not limited to, the use of the Software only by Authorized Users and solely in connection with such Permitted Use(s). 
    1. Relationship of the Parties. The relationship between the Service Provider and the Subscriber is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    1. No Third-party Beneficiaries. This Agreement and the Order Form(s) are for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement or the applicable Order Form(s).
    1. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute a single agreement. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.