Master Subscription Agreement

This Agreement consists of the following Terms and Conditions, one or more attached Appendix(es) (the “Appendix(es)”), any Appendix(es) and any written Addenda hereto executed by the parties (the Addenda”). The Appendix(es) will identify the Software and Hardware licensed by You and the fees for that Software and Hardware.

In consideration of the promises and obligations made and undertaken herein, the parties covenant and agree as follows:

TERMS AND CONDITIONS

  1. Definitions. As used in this Agreement, including any and all Appendix(es) and Addenda, the terms set forth below shall have the following meanings:

Business Hours means 8:00am – 6:00pm CST, Monday through Friday, exclusive of Company holidays.

Confidential Information means, in its most expansive interpretation and usage, all proprietary, non-public or confidential information and data that concerns Company’s and its Affiliated Entities’ business, the Software, the User Materials, technology, systems, finances, personnel, operations, or other assets and activities of Company and its Affiliated Entities, including, but not limited to, the contents of this Agreement, trade secrets, ideas, processes, formulas, systems, source codes, data programs, other original works of authorship, know-how, improvements, discoveries, developments, designs, inventions, techniques, marketing plans, training and education materials and sessions, new products, licenses, rates, prices, costs and customer lists not available to the public.

Designated Location means Your address set forth above (or such other address identified by You in writing).

Hardware means collectively, the kiosks and routers equipped with the Software set forth in any Appendix(es) under the heading “Hardware” and any other hardware subsequently purchased by You or provided to You at no charge from Company.

Interface means software designed to exchange data between the Software and a third party’s software and/or hardware licensed or maintained by You, including, without limitation, any EMR or EHR software maintained by You. You will be responsible for providing the Interface.

Software means that software which is loaded into the kiosks to enable Your patients to utilize the Hardware for insurance, scheduling and payment information assistance, plus the software necessary to allow the kiosks to Interface with Your computer system to provide You and Company with the ability to access this data, and process patient and third party payments.

Installation means that moment in time following completion of the physical installation of the Software and Hardware at any of Your facilities when Company has affirmed to You that the Software is ready for You to begin the implementation process.

System means collectively, the Hardware and Software set forth in any Appendix(es).

Third Party Software means the any software utilized by You in connection with Your use of the Software and/or Hardware described in this Agreement or any Appendix(es).

Update means any improvement (i.e. enhancement) and/or changes to the Software offered by Company.  Updates do not include additional modules and/or capabilities for which Company charges a separate license fee to its customers, if any.

User Materials means any documentation provided and licensed by Company to You or other organizations using the Software to, among other things, describe (i) the Software and/or Hardware functionality, capabilities, procedures, Updates, customizations, screens, data model and fields or (ii) how to train and /or install and/or implement the Software. User Materials may be provided in various forms, including paper, electronic media or in automated format (via the Internet or other media.)  User Materials are Confidential Information of the Company.

Affiliated Entities means any entity controlled by or controlling the Company or under common control or ownership with the Company.

  1.  License. Under this Agreement, Company grants solely to You a non- exclusive, non-transferable, limited use license, without any further right to sublicense, distribute, transfer or transmit the Software, for the Term set forth below.
  2.  User Materials. Company will provide You with either an electronic copy of the User Materials or a hard copy of such materials.  You may make as many copies of the User Materials as is reasonably needed by You to utilize the Software and Hardware.  Under no circumstances may the User Materials be provided or distributed to anyone other than Your personnel unless otherwise approved, in writing, by Company.
  3. Term Of License. Unless otherwise provided in Appendix A, this Agreement, and any license to the Software and Hardware granted under this Agreement, shall be for a term of four (4) years from the Effective Date, unless otherwise terminated in accordance with the provisions of this Agreement (the “Term”). Company is not responsible for obsolescence of the Software and/or Hardware that results from changes in Your requirements or for obsolescence of the Software and/or Hardware that result directly from material changes in the software technology industry.
  4.  Interface(s). You understand that development of a working interface between Your third party software and the Software and/or Hardware may require programming, equipment or software to be provided by a third party vendor, who may also impose additional fees upon You. Should You or the third party vendor fail to cooperate with Company in its development of the Interface(s), such failure shall not release You from making any payments due to Company. Company will not perform any modifications to the third party vendor’s software and/or equipment.
  5.  Installation and Implementation. Both parties agree to reasonably cooperate to create a mutually acceptable implementation plan and to use commercially reasonable efforts to implement the Software and install the Hardware in accordance with such plan. Unless the mutually agreed to implementation plan states otherwise, You agree to allow Company to install the Software and Hardware within 45days of the Effective Date. Neither party shall unreasonably delay installation and/or implementation of the Software and Hardware. Prior to the arrival of Company’s personnel to commence installation of the Software (or prior to telephoning by Company personnel if Software installation is to be accomplished via telephone), You shall have the Designated Location and all other things related to installation in readiness for installation, including but not limited to any hardware or third-party software supplied by You, and modem and internet connections. In the event You fail to: (i) have the Designated Location and all other things related to installation of the Software in readiness for installation at the time installation is scheduled to be performed and have not notified Company, in writing, of such failure at least five (5) business days prior to the scheduled Software Installation date and/ or (ii) cancel any scheduled training session more than three (3) weeks before its scheduled occurrence, then You shall reimburse Company for any direct expenses caused by such failure and/or cancellation.
  1. Fees. The payment terms for the license and use of the Software and Hardware shall be as set forth in Appendix A.  The manner of payment shall be as follows:

(a)  You shall complete and return the ACH Authorization form attached at Appendix B.

(b) Company shall provide You with an invoice on or by the third (3rd) day of the month following the month in which the fee was incurred.

(c)  You shall have five (5) business days to review the invoice so provided.  During this period, You will have the opportunity to review any questions or issues regarding the invoice with the Company.

(d) After the period described in subsection 7(c) expires, Company will automatically withdraw the amount due pursuant to the authorization set forth in Appendix B.

  1.  Miscellaneous Charges. The fees set forth in the Appendix(es) do not include any sales tax, which, if applicable, will be separately billed to You by Company. You will also be responsible for all other governmental taxes and fees associated with Your licensing, possession or use of the Software and/or Hardware, including any use taxes, state or local property or excise taxes.
  2.  Late Payment Charge. If any undisputed payment owed Company by You under this Agreement is not paid within thirty (30) days from its due date, Company may deem such non-payment as a material breach under this Agreement and, at its option, charge for its additional costs related to such delinquency at a rate of one percent (1%) per month (twelve percent (12%) per annum) or if such charges exceed that permitted by applicable law, the highest rate allowed by applicable law, from the date such payment first became due. It shall not be deemed a material breach, and no late fees will accrue, on any payment that is disputed by You in good faith.
  1.  Maintenance.

(a)Software Maintenance Services.  Provided You are current in Your payments required under any agreement with Company and otherwise in compliance with this and all other agreements with Company, then Company shall provide You with its Software maintenance services, which include:

(i)Updates.  At no additional charge, all Updates to the Software, which shall include keeping the Software in compliance with federal and state regulated changes that are identified, in writing, by You or of which Company has become aware.

(ii)  Telephone & Internet Support.  During Business Hours, to Company’s customer support department to resolve issues arising from Your internal use of the Software.  Upon request, and in Company’s sole discretion, Company will make Software maintenance services available to You during non-Business Hours. For Software and Hardware maintenance services rendered during non-Business Hours You will be charged at Company’s then current hourly rate. Company agrees to advise You prior to commencing any work that would result in such per hour charge.

Exclusions to Software Maintenance Services. Software Maintenance Services do not include the following: (a) support or support time due to a cause external to the Software or Hardware adversely affecting its operability or serviceability, which shall include but not be limited to water, fire, wind, lightning, other natural calamities, transportation, misuse, abuse or neglect; (b) repair of Software or Hardware modified in any way other than modifications made by Company; (c) support of any other third-party vendors’ software, such as operating system software, network software, database managers, word processors, etc., except that Company will provide reasonable assistance and coordination in handling issues that arise with that Third Party Software purchased by You from Company, as set forth in the Appendix(es) – however, such assistance shall not include any updates to or new versions of the Third Party Software or correction of any program-errors within the third-party software; (d) support services that can be rendered telephonically either by Company or Your personnel (at Company’s direction) but at Your request are performed on-site by Company; (e) on-site installation of the Updates or additional conversion services; (f) any additional hardware or third party software that may be required to install and use any Updates; or (g) training. All such excluded maintenance services performed by Company at Your request shall be invoiced to You on a time and materials basis, plus reasonable expenses associated therewith.

(b)Hardware Maintenance Services. Provided You are current in Your payments required under any agreement between You and Company and otherwise in compliance with this and all other agreements with Company, and except as identified in the Exclusions set forth in this subsection 11(b), then Company shall provide You its Hardware maintenance services, which include:

(i)Coordination & Services. Labor and parts reasonably required to maintain the Hardware in proper operating condition.  Company shall be allowed to make reasonable changes to or substitutions of the Hardware configuration due to product unavailability or delay, at its sole discretion. Additionally, Company, if necessary, will assist with the re-loading of the Software and Your patient data if required due to Hardware failure, provided You have adequate copies of same.

Exclusions to Hardware Maintenance Services.  At all time while at Your Designated Premises, You bear all risk of loss with respect to the Hardware, other than repairs necessitated by reasonable wear and tear.  Repairs due to reasonable wear and tear will be provided at no cost to You as described herein.  All other repairs or replacement of the Hardware shall be at Your expense and You will be charged our customary rates and charges for such repairs and/or replacements and fees.  In addition, the Company’s performance of the following services, are considered outside the scope of Hardware maintenance services covered by this Agreement, shall be charged to You at Company’s on a timely and material basis: (a) support or increase in support time due to a cause external to the Hardware adversely affecting its operability or serviceability which shall include, but shall not be limited to, water, fire, flood, wind, lightning, other natural calamities, transportation, failure or fluctuation in electrical power, humidity, misuse, abuse or neglect; (b) repair or correction to Hardware modified or altered in any way other than modifications made by Company; (c) routine cleaning, preventive maintenance, or “check outs”; (d) repair, maintenance or replacement of expendable items such as ribbons, cartridges, batteries, drums, etc. or (e) Your requested changes to the Hardware.

  1.  Uptime. Company’s goal is to maintain an uptime of ninety nine percent (99%) with respect to the availability of the Software during the Term.  Should Company not be able to satisfy this goal, as Your sole and exclusive remedy and Company’s sole and exclusive liability for such occurrence, Company will provide You with a credit based upon the fees paid by You to Company in the month prior to the month in which the uptime goal was not met.

Actual Uptime* of the Software Services           Percentage of Prior Month’s-Fee Credited

99%                                                                                                             0

97% to 98.9%                                                                                                2%

96% to 96.9%                                                                                                5%

95%                                                                                                               10%

You will not be eligible to receive these credits in the event Company’s failure to provide You with the uptime set forth herein is due to the event described in Section 29, or due to the failure of either any Third Party Software or any equipment maintained by You other than the Hardware.d

* For the purposes of this Agreement “uptime” will mean the availability of the servers on which the Software maintained by Company are located as measured by Company’s external monitoring service, minus all scheduled down time for maintenance.  Uptime will be made available to you on a quarterly basis upon request.  Company shall notify You of scheduled maintenance.

  1. Company’s Responsibilities. In addition to Company’s other obligations, agreements and responsibilities set forth in this Agreement and any Appendix(es), HealthiPASS agrees to be responsible for the following:

(a)    Providing the Software and Hardware in the manner set forth in this Agreement;

(b)   Making available a downloadable application to Your patients’ smart phones;

(c)    Provide an e-mail contact address for Your patients’; and

(d)   Maintain such commercial general liability and other insurance as is usual and customary in the Company’s business.

  1. Your Responsibilities. In addition to Your other obligations, agreements and responsibilities set forth in this Agreement and any Appendix(es), You agree to be responsible for the following:

(a)   Providing a proper physical environment and utilities for the Hardware, including an uninterrupted power supply;

(b)   Selecting and training Your personnel so they can operate the Hardware and related systems and so they are familiar with the accounts and records that serve as input and output for the Software;

(c) Procuring all communications and network services (including all cabling and cabling services) required to utilize the Software and Hardware locally and, should You so desire, in a remote environment consistent with this Agreement;

(d) Preparing the Designated Location for installation of the Software and Hardware, including compliance with special electrical, internet, communications or telephonic requirements (if applicable) and other tasks as may be necessary for the environment;

(e) All data entry and loading, other than that which is to be undertaken by the patient using the kiosk in the manner described in the User Materials;

(f) Providing us with the right to use Your logos and other written materials that are Your property to enable the Software to perform the functions You have subscribed for;

(g) Establishing and maintaining adequate operational back-up and disaster recovery provisions for Your data in the event of a defect or malfunction that renders the Software or the Hardware on which it runs non- operational;

(h)   Providing Company’s personnel with the necessary physical access to the Designated Location, during normal working hours and as otherwise may be required by Company to allow Company to perform its obligations under this Agreement.  Company will use reasonable efforts to comply with all reasonable security and safety procedures of which You have advised Company in writing;

(i)    Providing Company with full-time, protected and secured high-speed internet access or other communications needs in regard to the Software and Hardware.  You will be responsible for all charges associated with providing such internet access. Company will use reasonable efforts to comply with all of Your reasonable security and safety procedures  associated with Company’s remote access of the Software and/or Hardware, provided You have advised Company in writing of such procedures;

(j)    Procuring and maintaining all third party operating systems and other products and services that may be required to interface with the Hardware and the Software and that are licensed directly by You from third parties;

(k) Results obtained from use and operation of the Software and Hardware;

(l)  Resolving all payment disputes with Your patients;

(m)      Determining whether the Software and Hardware provided to You will achieve the results You desire;

(n) Allowing Company to utilize the data processed by the Hardware and Software: (i) to allow Company to perform its obligations under this Agreement; and (ii) to allow the Company to utilize the data collected by the kiosks in the manner described in this Agreement; and

(o) Establishing a merchant account with a processor that is compatible with HealthiPASS’s system.  You agree that HealthiPASS shall not be responsible for errors or defects in or with merchant account or processor described herein.

  1.  Indemnification.

(a)  You hereby agree to indemnify, defend and hold the Company, its affiliates, and the officers, directors, employees, agents and representatives thereof, harmless from and against any and all loss, cost, damage or expense of any nature whatsoever (including court costs and reasonable attorneys’ fees) suffered or incurred by any of the foregoing arising out of, or in connection with, any third party claim, demand, cause or causes of action based upon or arising out of: (i) any unauthorized use of the services or Hardware by You, any employee, contractor, agent, representative or any other person, firm or entity accessing or using the Software and/or Hardware through You; (ii) any unauthorized use of any Confidential Information of Company; (iii) Your breach of any of Your obligations, representations, warranties or covenants under this Agreement; or (iv) Your gross negligence or willful misconduct.

(b) Company hereby agrees to indemnify, defend and hold You, Your affiliates, and the officers, directors, employees, agents and representatives thereof, harmless from and against any and all loss, cost, damage or expense of any nature whatsoever (including court costs and reasonable attorneys’ fees) suffered or incurred by any of the foregoing arising out of, or in connection with, any third party claim, demand, cause or causes of action based upon or arising out of: (i) any unauthorized use of any of Your confidential information by Company; (ii) Company’s breach of any of Company’s obligations, representations, warranties or covenants under this Agreement; or (iii) Company’s gross negligence or willful misconduct.

  1. Company’s Proprietary Protection and Personal Information. Company and/or its third party suppliers have sole and exclusive ownership of all rights, title, and interest in and to the Software, Hardware, User Materials and all other Confidential Information, subject only to the limited internal business use license expressly granted to You herein. This Agreement does not provide You with title or ownership of the Software, Hardware or User Materials, but only a license for limited, internal use. This Agreement does not provide You with any title, interest or ownership in or any right to use Company’s name, trademarks or logo, or any goodwill now or hereafter associated therewith, all of which title, interest, ownership and goodwill is the property of and shall inure exclusively to the benefit of Company.  You may not use Company’s name, trademark, logo and/or any part of the Software in any marketing or other materials that will be distributed by You to third parties without Company’s prior written consent. The parties will enter into the Business Associate Agreement attached hereto to ensure that each party complies with its obligations under HIPAA.  You grant to Company all right and license to use patient and administrative data collected by the HealthiPASS system from patients (from kiosks, smartphone apps and web apps) and/or third-parties to: (a) enhance the patients’ experiences and value to patients; (b) provide benchmark analyses/reports in a non-patient identifiable manner; and (c) any other lawful business purpose; provided that Company shall continue to comply with HIPAA and the HealthiPASS Terms of Use for Patients.
  2.  Your Proprietary Protection. Company acknowledges and agrees that You are the owner of all data created by You which is provided to the Company such as, but not limited to, Your schedule of appointments, coded encounters and similar information.  Except to the extent such information has been licensed by You under Section 15 hereof, the Company agrees that it claims no ownership, right, title or interest in or to any of Your confidential and proprietary information and understands that this Agreement does not provide Company with title to or ownership of any of Your information as described herein.  In addition, Your confidential and proprietary information, and information regarding Your patients’ medical condition and treatment shall remain confidential and shall not be released by the Company.
  3. Limitations on Use. Notwithstanding any other provision of this Agreement, You shall not: (i) reproduce, record, videotape, capture in electronic audio or video form, distribute, transmit, transfer, or disclose, directly or indirectly, in any form, by any means, or for any purpose, the Confidential Information, except You may disclose such Confidential Information to Your employees who need to know such information in the performance of the job if they have been advised of the obligations of confidentiality set forth herein and have agreed to abide by same, (ii) disclose or disseminate Confidential Information to any third party, (iii) copy, modify, or distribute the Software (electronically or otherwise) or the User Materials, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Company in this Agreement, or in a separate written agreement signed by a duly authorized representative of the Company, (iv) use the Software or Hardware for any purposes in any manner not permitted under this Agreement; (v) decompile, reverse assemble or otherwise reverse engineer the Software; (vi) import, add, modify or delete data in the Software database by any method other than direct data entry through the application or through a Company-developed Interface, unless approved by Company in advance and in writing; (vii) use the Software to process anything other than Your own or Your patients’ data (viii) sell, transfer, lease, assign, or sublicense Your Software license without Company’s prior written consent; (ix) install the server-portion of the Software anywhere but the Designated Location without Company’s prior written consent (which will not be unreasonably withheld); (x) move any kiosk from the location where it was installed at Your Designated Location; (xi) take any other action in derogation of Company’s intellectual property rights in respect of the Software, User Materials or other Confidential Information, provided that if absolutely necessary due to then exigent circumstances. You authorize Company to enter Your premises in order to inspect the Software at any time during regular business hours to verify compliance with the terms of this Agreement.
  4. Warranties. Company grants You a limited warranty that (i) Company has developed, owns, and/or possess all rights and interests in the Hardware and Software necessary to enter into this Agreement; (ii) Company has full authority to execute and perform this Agreement; and (iii) Company’s execution and performance of this Agreement will not materially violate any material law or materially breach any material agreement, known by and governing Company; (iv) will provide You with the Uptime described in Section 11; and (v) Company possesses the third party licenses for the third party software utilized by Company in connection with its obligations under this Agreement.  Except as expressly set forth in this Agreement, the Software and Hardware are provided “AS IS.” For any breach of any warranty other than that relating to Uptime, Your sole and exclusive remedy, and Company’s entire liability and obligation, shall be, at Company’s election, to: (i) correct the Software, provide you with new Hardware, repair the Hardware or correct the User Materials or, (ii) provide You with an Update to the Software, whichever is, in the Company’s sole determination, reasonably appropriate, provided that no change may be made hereunder to the User Materials which modifies or deletes any material function of the Software.  Your sole remedy for Company’s failure to meet the Uptime goal is set forth in Section 11.  IF ANY PROBLEM, OPERATIONAL FAILURE OR ERROR OF THE SOFTWARE OR HARDWARE HAS RESULTED FROM ANY ALTERATION OF THE SOFTWARE OR HARDWARE (EXCEPT IF DIRECTLY BY COMPANY OR UNDER COMPANY’S WRITTEN DIRECTION), ACCIDENT, ABUSE OR MISAPPLICATION, THEN, AT COMPANY’S SOLE OPTION, THIS WARRANTY SHALL BE NULL AND VOID.

You warrant that: (i) Your execution of this Agreement will not violate the terms of any pre-existing agreement(s) between You and a third party, (ii) You have full power and authority and are duly authorized to execute and perform the financial and non-financial obligations under this Agreement, and, (iii) if You are anything other than an individual signing on Your own behalf, You have taken all of the necessary corporate action(s) in order to authorize and ratify Your execution and delivery of this Agreement and Your performance under the Agreement.

OTHER THAN AS EXPRESSLY SET FORTH ABOVE, COMPANY DOES NOT MAKE OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO YOU OR ANY OTHER PERSON WITH RESPECT TO THE SOFTWARE, THE USER MATERIALS, OR ANY UPDATES, INTERFACES, SERVICES OR WORKS OF AUTHORSHIP PROVIDED HEREUNDER, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY.  WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

COMPANY PROVIDES NO WARRANTY ON ANY THIRD PARTY SOFTWARE AND/OR HARDWARE NOT MANUFACTURED BY COMPANY.  EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY SOFTWARE, THIRD PARTY SERVICES AND/OR HARDWARE NOT PROVIDED BY COMPANY.

  1.  Limitation of Liability; Exclusion of Consequential Damages. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL COMPANY OR ANY OF COMPANY’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, LOST PROFITS, LOST DATA OR LOST OPPORTUNITIES, IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY HARDWARE, THIRD-PARTY SOFTWARE AND/OR SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

IN THE EVENT THAT THE SOFTWARE OR ANY REPORT OR INFORMATION GENERATED BY THE SOFTWARE IS USED IN CONNECTION WITH ANY DIAGNOSIS OR TREATMENT BY YOU AND/OR ANY OF YOUR EMPLOYEES, AGENTS, REPRESENTATIVES, AND THE LIKE, YOU AGREE TO ACCEPT ALL RESPONSIBILITY IN CONNECTION THEREWITH, INCLUDING RESPONSIBILITY FOR INJURY, DAMAGE AND/OR LOSS RELATED TO SUCH DIAGNOSIS OR TREATMENT, IRRESPECTIVE OF WHETHER SUCH INJURY, DAMAGE AND/OR LOSS RESULTS FROM YOUR USE OF THE SOFTWARE.

IN NO EVENT WILL COMPANY’S LIABILITY IN THE AGGREGATE FOR ANY DAMAGES FOR ANY MATTER ARISING UNDER THIS AGREEMENT EVER EXCEED THE SUBSCRIPTION FEES PAID BY YOU TO COMPANY HEREUNDER DURING THE PRIOR TWELVE CALENDAR MONTHS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

You represent and warrant to Company that You are a sophisticated purchaser and acknowledge and agree that the allocation of risks in this Agreement is reflected in the Fees paid by You to Company, that Company is unable to test the Software and Hardware under all possible circumstances, that Company cannot control the manner in which You shall use the Software, and that the allocation of risks under this Agreement is reasonable and appropriate under the circumstances.

  1.  Intellectual Property Indemnification. Company will defend You against any claim against you by a third party that alleges that our Software or any Update infringes such third party’s patent or copyright but only if we are notified promptly in writing of such claim, You provide reasonable assistance and information to us to perform our duties under this paragraph and we are given sole control of the defense and all related settlement negotiations relating to it.  If we believe that our Software may have violated a third party’s intellectual property rights, we will choose to either modify the applicable Software or obtain a license to allow for Your continued use. We will not indemnify You if You alter the Software or if You use a Software version that has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Software that was provided by Company to users or if the Software is used other than in accordance with its EULA and the User Materials. This paragraph provides Your exclusive remedy for any infringement claims or damages.
  2.  Default; Termination. Should You fail to carry out any obligation under this Agreement or any other agreement with Company or otherwise be in breach or violation of or in default under any provision, term, agreement, covenant, representation or warranty under this Agreement or any other agreement with Company, Company may, at its option, in addition to other available remedies, terminate this Agreement, execute a full or partial credit hold and/or disable the Software, provided that Company first gives You ten (10) days’ prior notice of such default and that You fail to cure the default within such ten (10) day period – except for payment defaults, which shall require no notice and allow for no cure period. For the purposes of this section a “credit hold” shall mean the discontinuance of any or all services (e.g. EDI, Maintenance Services, development, training, etc.) and the prohibition on purchasing additional products until Your account is brought current.
  3.  Effect of Termination. Termination of this Agreement also terminates Your license to the Software, Hardware and User Materials.  Upon termination of this Agreement for any reason, You are required to: (i) immediately return or destroy, as requested by Company, all copies of the Software, and (ii) turn all Hardware, and (iii) return or destroy, as requested by Company, all other materials (including but not limited to User Materials) and Confidential Information, including all copies thereof. You agree to certify, in writing, Your compliance with such requirements upon request by Company.  The Hardware must be returned in reasonable working order, reasonable wear and tear excepted within fifteen (15) days following termination.  If the Hardware is not returned to Company, at Your expense, in such condition, You will be responsible for the Company’s costs incurred in repairing or replacing the Hardware.
  4.  Rights to Injunctive Relief. Recognizing and acknowledging that any use or disclosure of the Software and/or other Confidential Information by You in a manner inconsistent with the provisions of this Agreement may cause Company irreparable harm for which other remedies may be inadequate, You agree that Company shall have, in addition to all other rights and remedies Company may have hereunder or under applicable law, the right to immediate injunctive and/or other equitable relief from a court of competent jurisdiction as may be necessary and appropriate to prevent any unauthorized use or disclosure of any such Software and/or other Confidential Information (without bond or requirement for proof of actual or likely damages) and that, in connection therewith, You shall not oppose such injunction on the grounds that an adequate remedy is available at law.
  5.  Notices/Shipment. All notices or communications required to be given shall be in writing and delivered either personally, via a nationally recognized overnight carrier, or by certified, return receipt requested, postage prepaid U.S. mail to the address(es) on the first page of this Agreement or, for Company, HealthiPASS, Inc., 1111 W. 22nd Street, Suite 222, Oak Brook, IL 60523, Illinois, Attn. Corporate Counsel, or at such other address designated to You by Company in writing. Notices delivered personally or via overnight mail shall be effective upon delivery, and notices delivered by regular U.S. mail shall be deemed effective five (5) business days after deposited in an official U.S. Postal Service mailbox. Prices are FOB Origin, Freight collected and title and risk of loss shall pass to You upon shipment by Company and/or its agents or suppliers/vendors.
  6.  Governing Law, Jurisdiction and Venue. This Agreement is made under, and in all respects shall be interpreted, construed and governed by, and in accordance with, the laws of the State of Illinois without reference to the choice of law principles thereof. Any cause of action arising out of or related to this Agreement may only be brought in the local court of applicable jurisdiction in the State of Illinois, DuPage County, and You hereby submit to the exclusive jurisdiction and venue of such court.
  7.  Modifications and Waivers. This Agreement may not be modified except by a writing signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision or right under this Agreement shall not constitute or imply a waiver of such provision or right on any other occasions unless expressly so agreed in writing. It is agreed that no custom, usage, or other regular practice or method of dealing between the parties hereto shall be used to modify, supplement, or alter in any manner the terms of this Agreement.
  8.  Relationship of Parties. This Agreement shall not be construed to create any employment, partnership, joint venture or agency relationship between the parties hereto, or to authorize You or Company to enter into any commitment or agreement with any third party that is binding on Company.
  9.  Binding Effect. Moreover, this Agreement shall be: (i) binding upon the parties’ respective legal representatives, transferees, successors, and assigns, (ii) inure to the benefit of Company’s transferees, successors, and assigns, and (iii) inure to the benefit of Your transferees, successors, and assigns only to the extent any such transfer or assignment has been approved in writing by Company and such transferee, successor or assign has expressly assumed, in a writing delivered to Company, the obligations of this Agreement.
  10.  Force Majeure and Other Performance Delays. Company shall not be liable for failure to perform any of its obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, act or threat of terrorism, shortage of materials and/or supplies, strike or labor action, war or threat of military or significant police action, or natural disaster or other cause beyond its reasonable control. Your delays or non-performance shall not excuse or relieve Your obligation to make any payment to Company that may be due under this Agreement, regardless of whether the Installation has occurred and/or You are using the Software and the Hardware.
  11.  Severability. If any provision of this Agreement is declared invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
  12.  Use of Personnel. Subject to the remaining provisions of this Agreement, each party is solely responsible for determining which of its personnel will perform its obligations under this Agreement. Additionally, Company, in its sole discretion, reserves the right to subcontract the performance of its obligations to a third party.
  13. Your Cooperation. You consent to the public use by Company of Your name as a customer of Company.
  14. Obligations that survive termination. The parties recognize and agree that the termination, cancellation or expiration of this Agreement does not excuse the parties from complying with their respective payment, confidentiality, non-disclosure, non-transfer, and non-solicitation obligations under this Agreement.  Nor does the termination, cancellation or expiration of this Agreement affect any limitations, rights upon default, or provisions regarding indemnification litigation or interpretation of this Agreement and all provisions which by their nature should survive the termination of the Agreement, shall survive for the longest period permitted by law.
  15. Uniform Commercial Code. To the extent the Uniform Commercial Code of any jurisdiction applies to this Agreement or any order, this Agreement and the particular order shall control where there is a conflict between the Uniform Commercial Code and such order or this Agreement.
  16. Covenant not to Solicit or Hire. Each party recognizes the expense and time associated with getting its employees and contractors trained so as to be a productive asset.  As such, efforts by a party, whether for their own account or for the account of any other person or other business entity, to interfere with the other party’s relationship with or endeavor to entice away from, solicit or deal with any person or other business entity who or which at any time during the term of this Agreement was an employee, contractor, consultant or agent of the other party’s will negatively impact a party’s business as well as cause such party substantial expense to re-hire, re-train and/or re-acquire a replacement employee, contractor, and/or business entity.  Accordingly, except with the other party’s prior written permission, each party agrees that during the term of this Agreement, and for three (3) years thereafter, if it hires the other party’s employees, contractors, consultants or agents of the other party’s, such hiring party will pay the other party two (2) times the annual salary (or in the case of a business entity, contractor, consultant or agent, fee) previously paid to that departing individual or two times the new salary to be paid to such departing employee/ business entity, whichever is greater. The parties agree that such amounts shall not and are not penalties but rather liquidated damages associated with the costs involved in recruiting, re-training and/or re-establishing a replacement personnel/business entity.  Each party agrees to given notice of its intention to solicit or hire and seek permission to hire an employee of the other no later than thirty (30) days prior to making an offer to any such individual.
  17.  Ambiguities. Each party and its counsel have materially participated in the drafting of this Agreement, and consequently the rule of contract interpretation that ambiguities, if any, in the writing be construed against the drafter shall not apply.
  18.  Term of Use; Privacy Policy. The Terms of Use and Privacy Policy set forth on Company’s website are hereby incorporated into this Agreement by their reference.
  19.  Entire Agreement. Each party acknowledges that it has read and understood this Agreement and agrees to be bound by its terms, and that this Agreement and the Appendix(es) hereto is the complete and exclusive agreement of the parties with respect to the Software and Hardware.  This Agreement and the Appendix(es), together with any Addenda: (i) contain the entire understanding between the parties with respect to the subject matter set forth herein, and neither party is relying on any representations or warranties other than those found in this Agreement, (ii) supersedes all prior and contemporaneous negotiations, agreements, contracts, commitments and understandings, both verbal and written, between You and the Company, and (iii) does not operate as an acceptance of any conflicting terms or conditions and shall prevail over any conflicting provisions of any purchase order, request for proposal, request for information or any other instrument of Yours. You understand that the headings used in the Agreement are solely for convenience of reference and are not intended to have any substantive significance in interpreting this Agreement. This Agreement and any amendments, waivers or modifications shall not be binding upon either party unless it is in writing and signed by authorized representatives of both parties. Signed counterparts shall not be deemed binding.