Software Subscription Agreement

This Software Subscription Agreement (“Agreement”) is effective as of the date of this agreement between the parties and is entered into between MicroMD, LLC., a Delaware Limited Liability Company (“COMPANY”) and the undersigned client (“CLIENT”). This Agreement sets forth the terms and conditions and revisions thereto whereby COMPANY provides its Solution (as defined below) and related services to CLIENT commencing from the date of first use of the software. Now, therefore, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS.

For new CLIENT, “Effective Date” shall be the date of this Agreement.
For existing CLIENT, the “Effective Date” shall be from the date of the most recent Order Form signed by the CLIENT. The revisions in this Agreement duly executed by parties supersedes all previous terms of service published on the website or similar agreements or order forms entered or accepted between parties.
“Authorized User” means an employee, agent or consultant of CLIENT accessing the Solution and, with respect to the patient portal component of the Solution only, a patient of CLIENT that has accepted the terms relating to the use of the Solution, which terms are acceptable to COMPANY.
“Local Service Provider” shall mean COMPANY’s Channel Partner or Value-Added Reseller entity or Medical Billing Company that may provide local on-site or remote services.
“Software” or “Platform” or “Solution(s) or Product(s)” shall mean COMPANY’s cloud-based software and its usage as per this Agreement. It shall also include any other related software utilized and/or made available by COMPANY along with their respective terms of service as published on their website.
“Update” means a release or version of the Software containing minor functional enhancements, error corrections or fixes that is indicated by a change in the numeric identifier for the Software in the digit to the right of the decimal.
“Subscription” or “Software Subscription” shall mean monthly usage of Platform paid as a monthly subscription as detailed in the Order Form signed by CLIENT, which is hereby incorporated and referenced herein as “Exhibit A” of this Agreement, or any other written and duly signed agreement between COMPANY and CLIENT. In the event there is an inconsistency between the terms of this Agreement and the Order Form duly signed on or after the effective date of this Agreement, the terms of the Order Form shall supersede.
“CLIENT” includes each user accessing the COMPANY Platform in connection with CLIENT.
“Underlying Agreement” or “Master Agreement” shall mean this Agreement or any other Agreements entered between Parties. Underlying Agreement are referenced in Exhibits, Addendums, or updated Agreements.
“Subscriber” or “Rendering Provider” shall mean Authorized Users that are licensed health care providers. A Rendering Provider and may or may not have a National Provider Identification (NPI) and may include machines and equipment utilized to schedule, perform clinical encounters, file claims and process payments related to payments. These are setup as providers in the system and exclude all non-provider users.
“Dummy Provider” shall mean a non-living device (machine) or device used. Use of a dummy provider is for scheduling purposes only. The dummy providers are not allowed to submit claims, see patients or use the system that creates billable transactions. Not having a NPI does not qualify for a dummy provider as they could effectively file a claim and chart a visit. As a result, any Dummy Providers in the system with a name, claims or charges will be invoices at COMPANY then-current rates. Any services used in billable charges will be invoiced accordingly.
, “Part-Time Provider” shall mean as defined in the pricing exhibits.
“Unlimited Claims” shall mean Clinical visits or claims transacted through supervising or billing provider (a claim is one visit) per month. However, using COMPANY’s Unlimited Claims Per Provider per month pricing/package to bill claims for other rendering providers is unpermitted and inappropriate use of the COMPANY system. Excessive claims or visits billed on behalf of other rendering providers or through dummy providers, machines or devices or non NPI providers shall be considered utilization as a Rendering Provider and therefore shall incur a monthly fee as a Rendering Provider. At its sole discretion, COMPANY, upon uncover such practice can invoice the CLEINT for such usage and the CLIENT shall be liable to make such payments retroactively.
“Order Form” shall mean the pricing Exhibit A attached and incorporated herein, signed at the beginning of the service, or subsequent Order Forms agreed by CLIENT and COMPANY related to price, usage or other terms. An Order Form need not be signed if such changes were made with a 30-day notice as an email or product notice pursuant to Section 6(6).

2. PURPOSE AND SCOPE.

Master Agreement. This Master Agreement establishes the terms and conditions applicable to all software, services, and products that CLIENT orders from COMPANY. Additional product or service-specific terms and conditions may be set forth in one or more “Attachments” that will become part of this Agreement when the product or service associated with such Attachments is purchased or licensed or subscribed by CLIENT. All references to Master Agreement mean this document, exclusive of Attachments, Purchase Schedules, and exhibits. All references to the “Agreement” mean, collectively, this Master Agreement, the Business Associate Agreement, Purchase Schedules, statements of work, any Attachments, amendments to this Master Agreement, and exhibits executed by the Parties. From time to time the Parties may execute or agree to additional Attachments, Purchase Schedules, or exhibits under the terms of this Master Agreement.
Purchase Schedules. “Purchase Schedule” means the document(s), regardless of title, executed by the Parties which incorporates by reference the terms of this Master Agreement as well as applicable Attachments, order forms, and pricing exhibits, and describes order-specific information, such as a description of products or services ordered, license metrics, and fees. After execution of the initial Purchase Schedule, CLIENT may purchase additional Software and Services including additional subscription or licenses under subsequent Purchase Schedules executed by both Parties to the Agreement.

3. SOFTWARE SUBSCRIPTION.

General. Subject to the terms of this Agreement, COMPANY hereby grants CLIENT a non-exclusive, non-transferable subscription to use the Solution as provided by COMPANY solely for use in CLIENT’s internal business use, including use by CLIENT’s Authorized Users (as defined above).
Hosted Services. COMPANY will provide CLIENT with access to the online hosted software subscription, data storage and data access for software and services as specified in Exhibit A.
Updates. COMPANY’s monthly subscription includes frequent updates to the software that CLIENT has subscribed to under this Agreement. Such updates shall not include paid add-on services, modules, or features. CLIENT at its sole discretion may choose to subscribe to such paid updates at the price set by COMPANY.
Monthly Minimum (“Base Fee”). CLIENT understands and agrees that (i) all fees are based on the Subscription purchased as specified in Exhibit A (the Order Form signed by the CLIENT), whether or not actually used notwithstanding to provider leaving or retiring from the practice, and (ii) unless expressly stated otherwise in Exhibit A. The number of paid subscribers / providers are a minimum amount that CLIENT has committed to for the relevant term and cannot be decreased during such term. In the event actual use exceeds the number of Subscribers or functionality or module type, CLIENT shall purchase additional Subscribers at COMPANY’s then-current fees. There shall be no fee adjustments or refunds for any decreases in usage. The terms “monthly minimum” and “base fee” are used interchangeably herein.
COMPANY’s unlimited package(s) and pricing are priced on a per provider per month (PP/PM) basis. A provider is a rendering provider that shall be either a full time or a part-time provider. COMPANY reserves the right to evaluate any rendering provider based on their package model for excessive use. Excessive use can be defined as a Provider or group of Providers, certain specialties, or an account that is deemed to be sending/using beyond the industry standard assumptions used in creating this package. COMPANY must account and invoice for all rendering providers per the terms of your agreement and will evaluate usage for excessive claim volume usage. In the event there is such excessive usage, COMPANY shall a charge a monthly overage fee of $0.89 per claim.

4. CLIENT CARE (CUSTOMER SUPPORT SERVICES).

Support. During the term of this Agreement, COMPANY will use commercially reasonable efforts to provide support services (“Support”). Such Support will be provided by remote support unless explicitly agreed to in writing, from COMPANY’s facilities and will be in the form of phone, email or online chat. Support services may be provided by COMPANY’s Local Service Provider. Notwithstanding the foregoing, COMPANY is not required to provide any of the foregoing unless there is an error in the Software causing a material decrease in functionality and accessibility not due to, in whole or part, any decrease in performance or connectivity issues attributable to CLIENT or Authorized User’s Internet connectivity, or otherwise agreed upon by CLIENT and COMPANY in writing. The terms and conditions of such Local Service Provider based support services, if any, are beyond the scope of this Agreement. In the case of such Local Service Provider -based relationship, COMPANY has no contractual obligations to provide direct support services to the CLIENT under this Agreement, and CLIENT’s sole remedy is with Local Service Providers subject to the Local Service Provider’s Terms related to such services. Notwithstanding the foregoing, COMPANY will provide all support and other services reasonably necessary to enable the effective development, deployment, and use of any certified application programming interfaces (“API Technology “) provided by COMPANY.
Service Level Standards. COMPANY shall make commercially reasonable efforts to achieve the up-time and system availability commitments set forth in the Service Level Agreement attached hereto and incorporated herein as Exhibit B. COMPANY shall timely respond to requests from the CLIENT or from the Local Service Provider for assistance in accordance with the time frames and priorities set forth in Exhibit B.

5. THIRD PARTY SOFTWARE

The Solution uses third-party software and COMPANY agrees to use reasonable efforts to document and escalate any errors related to such third-party software to the software manufacturer for resolution; provided, however that COMPANY is not responsible for correcting any such errors in the third-party software. The end-user license agreement, if any, that accompanies the LOCAL SERVICE PROVIDERS, third-party software or products associated with the Solution, is published by such third-party and governs the use of or access by CLIENT to the third-party software or product. Including but not limited, a list of third-party software, products, and services is available here https://www.micromd.com/library/Content/legal/third-party-products.htm

Third Party Products are made available on an “AS IS, AS AVAILABLE” BASIS. COMPANY MAKES NO WARRANTY OF ANY KIND AS TO LOCAL/THIRD-PARTY SERVICE PROVIDERS, THIRD-PARTY SOFTWARE, THIRD PARTY PRODUCTS, OR THAT THE SERVICES, SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CLIENT agrees to review and comply with each third-party’s terms of use and end user license agreement, to the extent applicable.

6. PRICING/FEES AND PAYMENT TERMS.

Fees. CLIENT agrees to pay the setup and subscription fees as set forth in the Exhibit A. CLIENT represents and warrants that it has reviewed the terms of the Exhibit A, that such terms were duly negotiated, and that CLIENT accepts and agrees to the fees specified herein and as set forth on Exhibit A.
Custom Work. Any custom work will be quoted on an as needed basis.
Taxes. The prices set in Exhibit A do not include taxes, if COMPANY is required to pay any other applicable Government duties, levies or taxes in respect to the Solution or services; COMPANY shall bill the CLIENT and CLIENT agrees to pay such taxes.
Payments. Payments for Online Software Setup and Monthly Online Software Subscription and related services as expressed in Exhibit A are immediately due upon execution of this Agreement. Recurring Monthly Online Software Subscriptions are billed in advance and due in full upon the first day of each month or upon completion of 30 days of usage. Other usage-based services are billed in arrears and due upon receipt. CLIENT will make payments by Automated Clearinghouse (“ACH”) or credit card. Interest accrues on past due balances at the lesser of 1.5 % per month or the highest rate allowed by law. Credit card payments are subject to an additional merchant’s fee of 3%. Unless expressly provided for otherwise, fees paid or payable for Software and Services are not under any circumstances contingent upon, subject to, or conditioned on (i) performance of any other services by COMPANY or (ii) delivery of future products or functionality by COMPANY, and may not be withheld. CLIENT shall reimburse COMPANY for each non-sufficient funds charge incurred by COMPANY.
Non-Payment. COMPANY may suspend CLIENT access for non-payment of fees expressed in Exhibit A if invoices are not paid within 15 days. COMPANY will provide advanced notice of no less than 15 days before suspending access for non-payment. In addition, for outstanding undisputed invoices over 30 days, reactivation fees of $75 per occurrence and late fees may apply. Additional finance charges not to exceed the lower of 1.5% interest per month or the limit of the applicable laws shall be charged. In the event of suspension of access as specified herein, COMPANY will not restrict CLIENT’s access to patient data hosted by COMPANY as a part of the Subscription such that CLIENT is completely unable to view such patient data.
Dispute of Invoices. CLIENT shall have 15 days from the receipt of invoices or payment of monthly charges to dispute any portions of the invoices, or else such issue shall be deemed waived.
Price Increase. Each year, COMPANY reserves the right to increase its fees by the yearly percentage increase in the most recently published Consumer Price Index (all items) or by three percent (3%), whichever is greater. At any point after the initial term, COMPANY may provide 30 days’ notice of any price increase for the Subscription and other related software and services and such prices increases shall become effective thereafter. By executing this Agreement, CLIENT hereby agrees to the price increases described in this section and acknowledges that execution of an additional Order Form related to the same shall not be required.

7. COMPANY RESPONSIBILITIES.

Compliance with Applicable Laws. COMPANY shall comply with federal and state laws, including statutes, regulations, and rules relating to all applicable services hereunder including maintaining the privacy and security of Protected Health Information (“PHI”).
Ownership and Storage. COMPANY understands and agrees that CLIENT is the owner of all CLIENT data. COMPANY stores and maintains the data on behalf of the CLIENT and will comply with applicable laws related to providing access to CLIENT data. Notwithstanding anything to the contrary in this Agreement, COMPANY may monitor CLIENT’s use of the Software and collect and compile Aggregated Statistics and Data (meaning data and information related to CLIENT’s and Authorized Users’ use of the Software that is used by COMPANY in an aggregate and anonymized/fully de-identified manner, including to compile statistical and performance information related to the provision and operation of the COMPANY). All right, title, and interest in Aggregated Statistics and Data, including all intellectual property rights therein, belong to and are retained solely by COMPANY, and shall not be CLIENT’s confidential information.
Feedback. If CLIENT or any of its employees or contractors sends or transmits any communications or materials to COMPANY by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), COMPANY is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. CLIENT hereby assigns to COMPANY on CLIENT’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and COMPANY is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although COMPANY is not required to use any Feedback.
Records Delivery. During the term of this Agreement, upon CLIENT’s request in writing, COMPANY shall send CLIENT’s records in an encrypted electronic format to the CLIENT in a readable format with all necessary documentations on the interpretation of the file. Upon termination or expiration of this Agreement and subject to the terms of the Business Associate Agreement between the Parties, COMPANY will not be responsible for maintaining CLIENT records after delivery to the CLIENT and confirmation that CLIENT is able to read the file. CLIENT shall provide confirmation of validation and receipt of CLIENT records within 10 business days of the delivery of the file containing CLIENT records. Silence by the CLIENT shall be deemed as acceptance of the file. . Additional reasonable usual and customary charges may be applied at COMPANY’s discretion, subject to applicable law, for any services rendered by COMPANY after termination of this Agreement and CLIENT agrees to pay such charges.
Unintended Consequences of Software Update. COMPANY will make commercially reasonable efforts to ensure that updates and enhancements to its Software and Products will not adversely impact CLIENT’s usage of the COMPANY platform.
External Connectivity. COMPANY shall provide connectivity services to authorized external parties including without limitation, lab, radiology, hospital and other health care providers and other medical devices as part of its hosted software subscription to enable CLIENT to share data between these systems and COMPANY. An upfront and monthly fee may be applicable for such interfaces which shall be pre-approved by the CLIENT. Additional development and support work is involved for the development of the connectivity and maintenance of the connectivity services and may be subject cost (if any) shall be pre-approved by the CLIENT. Such external connectivity availability is dependent upon the approval of the project by such external entities and their cooperation.
Beta Features. COMPANY, in its sole discretion, may invite CLIENT to access certain beta features from time-to-time. With respect to the same, CLIENT understands and acknowledges that such beta features: (i) are not final products and have not been made commercially or publicly available by COMPANY; (ii) may not operate properly, be in final form, or be fully functional; (iii) may contain errors, design flaws, or other problems; (iv) may not be fully functional; (v) may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (vi) may change and may not become generally available; and (vii) COMPANY is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service. Any beta features made available to CLIENT by COMPANY are provided AS-IS. CLIENT assumes all risk arising related to use of beta features, including, without limitation, the risk of damage to information systems or corruption or loss of data. PLEASE BE ADVISED THAT ANY BETA VERSION OF COMPANY MAY NOT YET BE CERTIFIED UNDER THE OFFICE OF THE NATIONAL COORDINATOR’S (“ONC”) HEALTH IT CERTIFICATION PROGRAM. CLIENT SHOULD NOT RELY ON A BETA VERSION TO MEET CERTIFIED ELECTRONIC HEALTH RECORD REQUIREMENTS UNDER THE MERIT-BASED INCENTIVE PAYMENT SYSTEM (“MIPS”), PROMOTING INTEROPERABILITY, OR OTHER PHYSICIAN PAYMENT PROGRAMS UNLESS THAT VERSION IS LISTED ON THE CERTIFIED HEALTH IT PRODUCT LIST AT https://chpl.healthit.gov.

8. CLIENT RESPONSIBILITIES.

General. CLIENT shall be responsible for:
1. providing sufficient information regarding errors or nonconformities in the Solution to COMPANY;
2. providing all reasonable cooperation to COMPANY with respect to the Software;
3. assuming all risk related to use or misuse by CLIENT’s Authorized Users, contractors, agents or other third parties; including unauthorized use or misuse of access passwords;
4. maintaining User ID’s and passwords as private and confidential information and not allowing passwords to be shared or used by multiple users;
5. immediately deactivating accounts of users who cease to need access, and restrict remote access, limit daily access hours, or deactivate or restrict any other Authorized Users that do not need access to the Solution, or notify COMPANY or its LOCAL COMPANY SERVICE PROVIDER to deactivate such account. CLIENT shall immediately notify COMPANY should CLIENT discover that a User ID has been used for unauthorized purposes.
6. COMPANY strongly recommends CLIENT secure a backup Internet connection from a different service provider to connect to COMPANY in the event of a failure of the primary Internet connection.
EHR. As an Electronic Health Record (“EHR”) COMPANY shall provide generic clinical contents (encounter sheets, canned sheets, flow-sheets, progress monitor and others), configurations, and related data. CLIENT agrees to review this data and make reasonable and legally compliant changes as needed to fulfill CLIENT’s needs. CLIENT retains sole and exclusive responsibility for any medical decisions or actions with respect to a patient’s medical care and for determining the accuracy, completeness or appropriateness of any diagnostic, clinical or medical information provided by the Software and/or or Services. In no event will COMPANY be responsible for assuming the professional responsibilities of clinicians and the clinical decisions made by health care providers. CLIENT is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable treatment information, medical and medication history, allergies, etc.), obtaining patient consent to use the Software (including, without limitation, the patient portal), and for all decisions and actions related to rendering medical care, care coordination, and case management. CLIENT agrees to manage settings as necessary to prevent unauthorized disclosures of patient records (including records accessible in the patient portal) as necessary to comply with state and/or federal law.
External Connectivity. COMPANY shall provide or create connectivity with CLIENT’s external entities, such as labs, radiology center, hospitals, pharmacies and others to permit interaction and communication between the Solution and such external entities. CLIENT hereby authorizes COMPANY to exchange information as needed with such external entities as necessary to provide the Solution. COMPANY shall comply with its obligations under the Business Associate Agreement between it and Client when supporting such exchange. However, COMPANY has no control over the data privacy and security compliance of external parties that are not subcontractor business associates of COMPANY.
Online Portal & Other Electronic Communications. COMPANY provides a secure Online Portal Connect or portal or phone apps as an add-on service (“Patient Portal”) that consists of various online options (including but not limited to SMS, email, text messaging, App notifications collectively referred to as “Electronic Communications”) for patients to interact with your office for medical and non-medical matters. CLIENT is responsible for instituting policies and procedures that ensure identity verification, access controls, and termination procedures as required by HIPAA and other regulations. Further:
1. Patients utilizing the Patient Portal must electronically accept the generic terms and conditions of the Patient Portal at initial log-in and subsequent updates published from time to time. The terms herein are generic in nature, CLIENT agrees to review these terms from time to time. To make any changes to this, please reach out to customer services for assistance.
2. CLIENT shall be solely responsible to maintain compliance with applicable laws related to all Electronic Communications, including without limitation, data privacy and security laws and the Telephone Consumer Protection Act (“TCPA”) or other similar state laws.
3. CLIENT is solely responsible for managing access to the patient portal, including managing necessary consents related to electronic communications with patients made through the portal or otherwise. In the event COMPANY offers an example registration form for the patient portal, the form shall not constitute legal advice, and CLIENT acknowledges that it is solely responsible for ensuring that registration forms and processes comply with applicable Laws and regulations.
4. CLIENT agrees that any registration or use COMPANY services that provide for Electronic Communications and/or patient portal access (including any request forms or use of communications features), shall constitute a request for COMPANY to send the electronic communications at issue (for example, emails, faxes, phone calls, or standard text message reminders about upcoming appointments, special oﬀers, and upcoming events).
5. COMPANY is not responsible for any costs that may be incurred with a user’s telecommunication carrier as a result of using text messaging or other electronic communication service offerings. CLIENT agrees to inform individuals that such charges may be incurred.
6. By providing telephone numbers and agreeing to accept Electronic Communications from COMPANY, CLIENT specifically authorizes COMPANY to send text messages or calls to such numbers. CLIENT represents and warrants it has the authority to grant such authorization. CLIENT is not required to consent to receive text messages or calls as a condition of using electronic services offered by COMPANY and may opt out of receiving such electronic communications at any time.
Telehealth. When using the Software or related service offerings from COMPANY to render treatment services to patients via “telemedicine” or “telehealth,” as defined by applicable State Law (hereinafter collectively referred to as “Telehealth Services”), CLIENT is solely responsible for: (i) complying with all applicable laws (including without limitation licensure requirements, accreditation requirements, professional standards, payor and regulatory requirements applicable to rendering treatment services to patients via Telehealth Services; (ii) all medical and professional decision making; (iii) ensuring appropriate documentation is maintained related to the Telehealth Services in a manner compliant with applicable Law and payor standards; (iv) obtaining any necessary patient consents; (v) billing and collecting for Telehealth Service encounters; (vi) using the COMPANY Telehealth Services in a manner consistent with the instructions and other information made available by COMPANY; (vii) informing patients of the risks associated with using Telehealth Services; and (viii) maintaining the equipment and devices used for accessing the COMPANY Telehealth Services in a manner that ensure the security and functionality of the Telehealth Services and related records.
Third Party Licensing. The CLIENT is solely responsible for compliance and adherence with any and all applicable third-party licensing or proprietary requirements for data, claim rules, and contents such as ICD, Procedure codes, HCPCS codes, CPT codes, Insurance, Fee Schedule, clinical hand-outs and others that are either converted from CLIENT’s current system or as keyed-in, uploaded, or interfaced into COMPANY. COMPANY is a subscription-based system and does not distribute or license software, data, or content including licenses to COMPANY software. Unless explicitly agreed to otherwise, all elements of COMPANY Software are utilized on a monthly subscription basis only.
Third Party Licensing. Unless specifically provided herein in this Agreement or in the Order Form or in Exhibits, the CLIENT is solely responsible for compliance and adherence with any and all applicable third-party licensing or proprietary requirements for data, claim rules, and contents such as diagnosis, procedure codes, billing codes, Insurance list, fee schedules, , clinical hand-outs and other contents and data that are either converted from CLIENT’s current system or as keyed-in, uploaded, or interfaced into COMPANY’s system. COMPANY does not distribute or license, data, or content including licenses to COMPANY software.
Client Data. CLIENT owns all right, title, and interest in the data that CLIENT provides to COMPANY or inputs into the Software (“Client Data”) or at a minimum is authorized to provide such data to COMPANY in connection with COMPANY’s performance under this Agreement. CLIENT represents that CLIENT has obtained the Client Data in compliance with all applicable patient consents, and applicable laws, and providing the Client Data to COMPANY or inputting the Client Data into the Software, and the storage of the same by COMPANY or COMPANY third-party service providers does not violate any patients consents or applicable laws. CLIENT hereby grants to COMPANY a non-exclusive, royalty-free, license to reproduce, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for COMPANY to provide the Services to CLIENT.
Use Restrictions. CLIENT and Authorized Users shall not use the Software for any purposes beyond the scope of the access and use granted herein. CLIENT and Authorized Users shall not: (i) copy, modify, or create derivative works of the Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, or transfer, the Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; (v) use the Credentials of another Authorized User to access or use the Software; (vi) input , upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious or harmful computer code; (vii) use the Software in any way that interferes with other subscribers use of the Software; or (viii) use the Software in any manner or for any purpose that infringes, misappropriates, or violates any applicable law.

9. PROPRIETARY RIGHTS.

All right, title and interest in CLIENT’s data will remain the property of CLIENT. COMPANY and its licensors shall respectively retain sole and exclusive ownership of all right, title and interest in and to the Solution, aggregated Data, de-identified data as permitted by HIPAA, and statistics, and any updates, upgrades or modifications thereof, or in any ideas, know-how, changes, improvements, enhancements, development and additions or modifications to programs and data (encounter sheets, canned sheets, lookup values and other data) and programs during the course of this Agreement.

10. CONFIDENTIAL INFORMATION.

The Parties hereby agree to adopt, incorporate, and be bound by the terms of the Business Associate Agreement (“BAA”) published in the Legal Section of the Solution.
CLIENT agrees that any information regarding the Solution that is marked “confidential” or “proprietary”, or “copyright,” or which by its nature would be confidential, is proprietary to COMPANY and disclosure or use of such nonpublic information would cause substantial detriment to COMPANY. Neither CLIENT nor any of its employees or any Authorized Users will use, for their own account or for the account of any third party, or disclose to any third party any nonpublic Information regarding the Solution. Furthermore, CLIENT agrees that COMPANY does not wish to receive any information that may be considered CLIENT confidential. Notwithstanding the foregoing, all CLIENT data accessible to COMPANY shall be treated as confidential in accordance with this Section.
Nothing contained herein shall restrict or be interpreted to prohibit any communication regarding the usability, interoperability, or security of COMPANY Software or Services, relevant information regarding users’ experiences when using COMPANY Software, the business practices of COMPANY related to exchanging electronic health information, or the manner in which users of COMPANY have used its technology. COMPANY reserves all rights regarding its intellectual property.
COMPANY will not prohibit or restrict CLIENT or any person or entity from communicating any information (including proprietary information, confidential information, and intellectual property) when the communication is made for the following purposes: disclosures required by law; communicating information about adverse events, hazards, and other unsafe conditions to government agencies, health care accreditation organizations, and patient safety organizations; communicating information about cybersecurity threats and incidents to government agencies; communicating information about information blocking and other unlawful practices to government agencies; or communicating information about a health IT developer’s failure to comply with a Condition of Certification requirement, to the ONC or an ONC–ATCB.

11. TERMS AND TERMINATION/CANCELLATION.

Term. This Agreement shall commence on the Effective Date and continue for a minimum term of (24) months unless otherwise stated in Exhibit A as executed by the CLIENT either during the Initial Term (the “Initial Term”) or during the renewal term (“Renewal Term”).
Renewal Terms. Prior to the completion of term of 24 months, unless CLIENT provides COMPANY with 90 days written notice of its intent to terminate this Agreement prior to the end of the then current term, this Agreement shall automatically renew at COMPANY’s then-current rates and current Subscription Agreement terms for a subsequent 12 months term (the “Renewal Term”).
Cancellation. CLIENT may terminate this Agreement at the end of either Initial Term or Renewal Term with 90 prior written notice (“Notice Period”) prior to the termination date of the end of the current term.
Subscriber Cancelations. CLIENT must provide COMPANY with at least 30-days written notice of cancelation to cancel individual Subscribers or providers. This requirement does not affect the Initial Term or Renewal Term. Subscriber cancellations shall not reduce Base Fee agreed to under the terms of this Agreement.
Refund. All fees paid are non-refundable.
Termination for Breach or Cause. CLIENT or COMPANY may terminate this Agreement at any time, upon written notice, if the other party breaches a material term of this Agreement and fails to cure such breach within forty-five (45) days of written notice of such breach by the non-breaching party. Either party may terminate this Agreement effective immediately if the other party:
1. terminates or suspends its business activities;
2. makes an assignment for the benefit of creditors;
3. becomes subject to control of a trustee, receiver, or similar authority; or
4. becomes subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within 60 days.
Termination for Failure to Meet Service Level Commitment. CLIENT shall have the right to terminate this Agreement at any time if the system availability and up-time commitment as defined in the Service Level Policy attached hereto as Exhibit B is not met for two (2) consecutive months or the Solution is not available during the peak hours for a continuous period of eight (8) or more hours. CLIENT must provide such termination notice in writing within 30 days of such failure by COMPANY to meet the Service Level Commitments described in Exhibit B, with information reflecting the nature of the alleged failure in sufficient detail.
Effect of Termination. Upon any expiration or termination:
1. COMPANY shall provide to CLIENT all of CLIENT’s data in a commercially reasonable and legally compliant format. Patient demographics shall be provided at no cost. For any transactional data, COMPANY may charge usual and customary data extraction charges of $2,000.00 (subject to the price increases herein), or otherwise to the extent allowable under applicable law. This extraction shall be within the purview of COMPANY’s current data format.
2. Upon termination, access to the Solution shall be terminated. All unpaid fees shall be due and payable in full immediately. Until CLIENT data is provided to CLIENT, COMPANY shall not suspend the ability to access patient information.
3. COMPANY shall maintain a copy of CLIENT’s data in accordance with and for the period of time required by applicable law. CLIENT retains responsibility for the legal retention requirements of CLIENT data, individual access to health information, and patient forms related to data access that apply to CLIENT under applicable law.
4. At CLIENT’s request and for a period of time designated by CLIENT (the “Transition Period”), COMPANY may provide a limited subscription to the Solution (”READ-ONLY SUBSCRIPTION”). Such READ-ONLY SUBSCRIPTION shall amount to $100 or 20% of the average of last three months invoice whichever is higher. At no cost, CLIENT shall have the full discretion to opt for a full data file of the data in the standard format. CLIENT acknowledges that READ-ONLY SUBSCRIPTION enables the CLIENT to utilize the system to view records, but CLIENT cannot create any new records. CLIENT can discontinue the Transition Period with 30 days’ written notice. COMPANY will cooperate and assist CLIENT in the orderly transition and conversion of CLIENT’s data as expressed in Section 4(f)(i) above to another vendor by providing CLIENT with the following during the Transition Period on the same terms as set forth in this Agreement, thereby extending the term through the end of the Transition Period: (A) the Subscription to continue to use the Solution; and (B) any additional services as needed.
Early Termination of Subscription. For any early termination other than for cause by CLIENT as specified in Section 11(e) prior to the end of the term of this Agreement, CLIENT shall be responsible for 75% of the remaining months of the contract, including and any minimum duration for modules activated during the Term.
Survival. Those rights and obligations that accrued prior to the effective date of termination and those obligations that by their nature or express terms continue after the effective date of termination shall survive any termination of this Agreement.

12. ONLINE TRAINING.

Training to use the Solution is available through online help, online tutorials and webinars (recorded and live). Additional training, if required are available at COMPANY’s current hourly rate. COMPANY and/or its LOCAL SERVICE PROVIDER shall provide training as set forth in the Exhibit A to CLIENT’s Authorized Users regarding the use and implementation of the Solution. The parties shall mutually agree upon the logistics of such session(s) including the date, location and number of attendees. CLIENT may request any additional paid training subject to COMPANY’s availability.

13. WARRANTY, DISCLAIMER AND REMEDIES.

Representations and Warranties. COMPANY represents and warrants to CLIENT that: (i) COMPANY has the right and authority to grant the rights described in this Agreement; and (ii) it will perform its obligations hereunder in a professional and workman like manner consistent with the industry standards.
Intellectual Property. COMPANY will indemnify and hold CLIENT harmless from and against any claim by third parties pertaining to the infringement of U.S. copyrights, trademarks or patents arising out of CLIENT’s use of any of the COMPANY’s PRODUCTS as authorized hereunder, provided that the PRODUCTS have not been altered, revised or modified by the CLIENT in a manner that causes the alleged infringement, and further provided that:
1. CLIENT promptly notifies COMPANY in writing of such claim;
2. COMPANY will have sole control of the defense of any action on such claim and of all negotiations for its settlement or compromise;
3. CLIENT agrees to cooperate with COMPANY in every reasonable way to facilitate the settlement or defense of such claim; and
4. should such COMPANY’s Products become or, in COMPANY’s opinion, be likely to become, the subject of an infringement claim, CLIENT will permit COMPANY, at COMPANY’s expense, to:
  1. procure for CLIENT the right to continue using such COMPANY’s PRODUCTS, or
  2. replace or modify the same to become functionally equivalent yet non-infringing, or
  3. upon the failure of (1) and (2) above, terminate, without penalty, CLIENT’s use of the affected COMPANY Products, in which event COMPANY will refund to CLIENT on a pro-rata basis any pre-paid amounts related thereto, and such amount shall not exceed more than 30 days of pre-paid subscription. In the event of such termination, COMPANY will provide access to CLIENT data in accordance with this Agreement.
Disclaimer. The Solution services and all other services are provided to CLIENT on an “AS IS” basis and without any additional warranty of any kind. NEITHER COMPANY NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOLUTION, ANY DELAY OR FAILURE OF THE INTERNET, AND COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Further, CLIENT expressly recognizes that COMPANY does not warrant that the Software will meet all of CLIENT’s requirements, that the use of the Software will be uninterrupted or error-free, that patches, updates, or workarounds will be provided, or that errors will be corrected in Software updates, according to the schedule, or in every case. CLIENT agrees that access to the Internet cannot be guaranteed and is outside the direct control of COMPANY and that CLIENT’s inability to access the Internet, through no fault of COMPANY, shall in no event relieve CLIENT of its payment obligations hereunder. CLIENT agrees that its sole remedy with respect to any claims in connection with CLIENT’s or its Authorized Users’ use of the Solution, including use of the Software, shall be with COMPANY and not its licensors. CLIENT further agrees that unless expressly agreed to in writing, there are no intended third-party beneficiaries to this Agreement.
Clinical and Non-Clinical Content Disclaimer. Clinical and Non-Clinical information contained on COMPANY’s web-based solutions and website is general in nature and must not be substituted for, or be used instead of, the independent judgment of a licensed health care professional and is only designed to support, not replace, the relationship that exists between a patient and his/her health care practitioner, and any and all information does not constitute the practice of medicine or any other health care profession. Nothing in the COMPANY’s Solution or website is intended as a recommendation or endorsement of any specific tests, drugs, PRODUCTS, procedures, health care providers, opinions, or other information that may be mentioned therein. Any reliance on any information appearing on COMPANY’s Solution or website or provided by COMPANY’s personnel, others appearing on the site at the invitation of the “Website”, and/or other visitors to the site or any third-party link from the site is solely at CLIENT’s own risk. CLIENT retains sole responsibility for all clinical decision making and record keeping.
Exclusive Remedies. For any breach of the warranties contained in this Section 13, CLIENT’s exclusive remedy, and COMPANY’s entire liability, shall be the correction of the cause of the breach of such warranty. If cure is not reasonably possible, then the limitations in Section 14 shall apply. Parties agree for the considerations exchanges between parties under this Agreement, this is a reasonable allocation of risk. Any error not reported to COMPANY by CLIENT within 30 days of its discovery will be deemed waived and accepted by the CLIENT.
Other Disclaimers. CLIENT understands and CLIENT expressly recognizes that:
1. Electronic claims, Electronic Remittance Advice, Eligibility Verification and others are processed by third parties (Clearinghouses). COMPANY may connect CLIENT with such third parties as part of the Electronic Claim services. COMPANY relies on these third parties for applicable compliance requirements, accuracy and completeness of the services provided by these third parties.
2. COMPANY provides drug database, interactions, eprescription to drugs including EPCS, formularies and bidirectional connectivity to pharmacies through partnership with third parties. CLIENT represents and warrants that it will accept and comply with the third-party Agreements and any other third-party software or product terms of use and license agreements applicable under this Agreement.
3. COMPANY recommends CLIENT to setup a secure email account to download emails and/or electronic faxes on a secure machine and delete it from the email server following receipt. COMPANY strongly discourages use of FREE email servers such as Yahoo, Google, MSN or Hotmail and any email services that scan through emails and its contents for marketing purposes; this could potentially compromise PHI or other private and confidential information. CLIENT retains sole and exclusive responsibility to comply with applicable state and federal privacy laws with respect to CLIENT’s use of such email accounts in relation to this Agreement.
4. As part of providing Services to the CLIENT, COMPANY may be required to log in to the CLIENT’s account for the purpose of providing services to CLIENT as specified in this Agreement. COMPANY shall comply with all privacy, confidentiality, and security compliance requirements when logging in for such purposes.
5. CLIENT acknowledges that optional electronic fax service, email services and other services are provided by third party service providers. In no event will COMPANY be liable for any claims or damages related to CLIENT’s use of such third-party service providers.

14. LIMITATION OF LIABILITY.

1. IN NO EVENT WILL COMPANY, ITS LICENSORS, SERVICE PROVIDERS AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, AGENTS AND REPRESENTATIVES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, LOST BUSINESS AND LOSS OF DATA, DATA BREACHES, OR COMINGLING OR CORRUPTION OF DATA OR LOSS OF GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF THE SOLUTION, OR ACCOMPANYING MATERIALS AND/OR SERVICES, ACCESS TO OR FAILURE TO ACCESS THE INTERNET OR OTHER INTERRUPTIONS OR OTHER PROGRAM RELATED ANOMALY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER IN ACTION, IN CONTRACT OR TORT. THIS LIMITATION WILL APPLY EVEN IF COMPANY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FURTHER, IN NO EVENT WILL COMPANY’S OR ITS LICENSORS’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY CLIENT FOR THE SOLUTION OR SOFTWARE GIVING RISE TO THE LIABILITY DURING THE 3-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. UNDER THE PRICING AND OTHER TERMS AND CONDITIONS, THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SPECIFIED HEREIN REPRESENTS A REASONABLE ALLOCATION OF RISK.
2. Limitation of Liability of Interface Connectivity with Third Parties. Notwithstanding any other provisions of this Agreement, COMPANY has no liability under this Agreement, including the Business Associate Agreement, for any disclosure of Protected Health Information (“PHI”) made by means of access through COMPANY interfaces by or on behalf of the CLIENT or by means of access by any third party to the extent such third party obtained access to the interface as a result of the intentional disclosure by the CLIENT, gross negligence of CLIENT, or CLIENT’s failure to maintain appropriate access controls, access management, access termination procedures or any other applicable HIPAA requirements. All Interface requests made by the CLIENT or by a third party on behalf of the CLIENT shall be considered intentional disclosure.
3. Limitation of Liability on Online Portal and KIOSK and Patient Messaging. COMPANY provides a secure online portal module that provides patient messaging. Notwithstanding any other provisions of this Agreement, COMPANY has no liability under this Agreement, including the Business Associate Agreement, for any disclosure of Protected Health Information (“PHI”) made by means of access or transmission of PHI in relation to the portal.
4. Class Action Waiver. The parties agree that any litigation or arbitration arising out of or relating to this Agreement may only be maintained on an individual basis and any right to pursue any claims arising out of or related to this Agreement may not be consolidated into more than one party’s individual claims or be raised on behalf of a class of the parties. This limitation shall apply without limitation to both to arbitrations and court proceedings.
5. Wavier of Jury Trial. Each party irrevocably and unconditionally waives any and all rights to a trial by jury in any legal action relating to this Agreement, including any and all exhibits, attachments, and amendments hereto.

15. FORCE MAJEURE.

In no event shall COMPANY be liable to CLIENT or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond COMPANY’s reasonable control, including but not limited to acts of God, flood, pandemic, epidemic, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

16. INDEMNIFICATION.

CLIENT shall indemnify, defend and hold COMPANY, its officers, directors, employees, and licensees harmless from and against any and all liability, damage, loss, or expense, including reasonable attorneys’ fees arising from any third party claim, demand, action or proceeding based upon CLIENT’s or an Authorized User’s breach of this Agreement, use of the Solution in a manner not expressly authorized by this Agreement or in a manner contrary to applicable laws, or incurred in the settlement or avoidance of any such claim.

17. PUBLICATIONS.

COMPANY may issue a press release announcing the relationship contemplated by this Agreement. COMPANY may include quotes from CLIENT in COMPANY’s press releases with a consent from the CLIENT. Further, during the term of this Agreement, COMPANY may use CLIENT’s name and logo in press releases, marketing materials, financial reports and prospectuses solely to indicate that CLIENT is a client of COMPANY.

18. MISCELLANEOUS.

1. Modification. Except in the case of a Sales order or as an addendum or Exhibit A specifically amending this Agreement, the terms, provisions, or conditions of any purchase order or other business form or written authorization used by CLIENT will have no effect of the rights, duties, or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of COMPANY to object to those terms, provisions, or conditions. Unless otherwise provided for in this Agreement, this Agreement may be amended, supplemented or modified in whole or in part at any time by COMPANY with 30 days email notification, written notice published in the Software, and/or in COMPANY’s sole discretion by executing an addendum to this Agreement.
2. Waiver. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof. No failure of either party to pursue any remedy resulting from a breach in this Agreement by the other party shall be construed as a waiver of that breach, nor as a waiver of any subsequent or other breach unless such waiver is signed and in writing.
3. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable or invalid, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns. Both parties agree to notify the other party of any assignment or delegation of this Agreement. Any attempted assignment in violation of this Section 18(c) shall be null and void.
4. Governing Laws and Venue.The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the state of Florida, and the venue for any dispute shall be in the County of Hillsborough, Florida, without regards to conflicts of laws.
5. Dispute Resolution and Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in the County of Hillsborough, Florida, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own expenses in connection with the arbitration. It is the intention of the parties that this Agreement shall be construed and interpreted in a fair and equitable manner based upon the facts and circumstances of the parties, taking into account the present intention of the parties to have a fair and equitable agreement under the terms and conditions set forth in this Agreement. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Agreement shall bar either party from obtaining injunctive relief through the Superior Court or Federal Courts of the same jurisdiction. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.
6. “Abandon Account” shall mean a CLIENT has discontinued services but has failed to formally terminate its service with COMPANY by a combination of non-payment of the current or previous month fees and 30 consecutive days of no logins to the Platform. On the 31^st day, the account is deemed “Abandoned” and the account is terminated if the CLIENT fails to confirm their account via email within 30 days of sign-up.
7. Company shall only support the most recent version of its software.
8. Anti-Kickback Statute. The Parties to this Agreement certify that this Agreement and any payments made, or items or services provided hereunder were determined in a manner that does not take into account the volume or value of referrals or business generated between the Parties. The Parties agree that this Agreement and their relationship is intended to comply with 42 U.S.C. Section 1320a-7b, commonly referred to as the Anti-Kickback Statute.
9. No Construction against Drafter. This Agreement is not to be construed against the drafting party.
10. Notices. Any notice required or permitted to be given shall be delivered by hand, email, by overnight courier, by fax with confirming letter mailed under the conditions for mailed notice, or by registered or certified mail, postage paid, return receipt requested, to the address of the other party first set forth above. Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. CLIENT affirms that the email address and contact information provided for receiving such notices is accurate and authorized for receiving such notices.
11. Relationship between the Parties. The relationship between the Parties 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.
12. Entire Agreement. Unless certain terms or provisions are explicitly overridden in the Order Form wherein this Agreement referenced as the Underlying Agreement, the parties agree that this Agreement constitutes the complete and exclusive understanding and agreement of the parties relating to the subject matter hereof. This Agreement supersedes all prior understandings, proposals, agreements, negotiations, and discussions between the parties, whether written or oral.
13. Electronic Signature. The parties agree to execute this Agreement electronically. By fixing an electronic mark and/or accepting the terms of this Agreement electronically (either by way of executing below or otherwise agreeing to the terms of this Agreement on an Order From), CLIENT understands that this Agreement shall be given the same legal and binding effect if executed electronically as if it were signed manually in paper form by CLIENT and COMPANY. The individual signing below represents that they have the full legal authority to bind the CLIENT to the terms of this Software Subscription Agreement, Business Associate Agreement, and Service Level Agreement.