Health Subscription Agreement

Terms and Conditions

This Subscription Agreement consists of these Terms and Conditions and one or more Service Orders. These Terms and Conditions shall apply to each Service Order as executed by and between CaseAtlas, Inc. and its subsidiary, Care52 and Client. All references herein to this Agreement, unless otherwise specified, shall include these Terms and Conditions, any Business Associate Agreement, all schedules, specifications, exhibits, attachments and addenda referenced or appended hereto, and all Service Orders, and all are incorporated herein by reference.

  1. DEFINITIONS.

    1. "Application Services" means hosting and operating an Care52 Application to provide Client with access to and use of such Care52 Application.
    2. "Authorized Users" means persons authorized by Client (including its employees, Patients and Providers) to access and use the Services who possess an authorized user ID and password and for whom Client has paid the applicable user fees.
    3. "Consulting Services" shall mean any training, consulting, data migration, conversion, integration, implementation and/or other services provided by Care52 to Client, as described in the Service Order.
    4. "Content" means all Client Confidential Information, software applications, text, pictures, sound, graphics, video and other data transmitted by Authorized Users using the Services.
    5. "Care52 Application" means all software and databases used by Care52 to provide the Application Services to Client.
    6. "Patient" means a person seeking health care and who, prior to using the Application Services, has been determined by Client to have a patient-physician relationship with a Physician in accordance with the applicable requirements of State law and of the applicable State licensure boards.
    7. "Physician" means a licensed physician that participates in Client's medical practice.
    8. "Provider" means a provider of medical or health services, including, but not limited to a Physician, a physician assistant, nurse, physical therapist or psychotherapist.
    9. "Service Order" means the written description of the Services to be provided by Care52 to Client that is executed by Client and Care52 and expressly refers to this Agreement.
    10. "Services" means the Application Services, Consulting Services and any other services identified in Section 2.1 of this Agreement.

  2. SERVICES.

    1. Services. Care52 shall use commercially reasonable efforts to provide the Services in accordance with the terms and conditions of this Agreement. In the event of any conflict between the body of this Agreement and a Service Order, the terms and conditions set forth in the body of this Agreement shall govern. The Services shall include: (i) the provision of technical support to Authorized Users via email during Care52's regular business hours, in accordance with Care52's then-current technical support policies and (ii) Care52's then-current online training. Client's Provider's and employees shall complete such training prior to their use of the Application Services. Upon Client's request, Care52 may provide additional technical support at Care52's then-current hourly rates, subject to the execution of a mutually agreed upon Service Order.
    2. Security. Care52 has implemented commercially reasonable security measures to prevent unauthorized access to computer hardware and other equipment and/or software possessed and used by Care52 to provide the Application Services. Client shall be solely responsible for the security of the Client Operating Environment.
    3. Care52 Application Changes. Care52 may from time to time develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Application Services ("Care52 Application Changes"). Client hereby authorizes Care52 to implement such Care52 Application Changes for use with the Application Services, provided that such Care52 Application Changes do not have a material adverse effect on the functionality or performance of the Application Services. When commercially practicable, Care52 shall notify Client in advance of the implementation of any material Care52 Application Changes.
    4. Cooperation; Access. Client acknowledges that the successful and timely rendering of the Services shall require the good faith cooperation of Client. Care52 shall not be liable for any failure to perform the Services that arises from Client's failure to cooperate with Care52.
    5. Special Terms. The Application Services provided to Client shall be subject to any specific limitations set forth in the Service Order, including limitations on bandwidth and data storage.

  3. USE OF THE APPLICATION SERVICES.

    1. Care52 License. Care52 hereby grants to Client a nontransferable, non-exclusive, license during the term of this Agreement, to allow Authorized Users to access and use, over public and private networks, the Application Services for its medical practice and not for use by any third party practice. The number of Providers accessing the Application Services shall not exceed the number of Providers purchased by Client, as indicated in the Service Order. Client shall notify Care52 in writing in the event it wishes to increase the number of Providers. Upon receipt of such notice, Care52 shall increase the number of Providers at Care52's then-current rates. Client may, upon ninety (90) days' written notice, reduce the number of Providers by up to ten percent (10%) during each Term of this Agreement.
    2. Restrictions.

      1. Care52 owns all right, title and interest in and to the Application Services and Care52 Application. The Application Services are provided to Client for use only as expressly set forth in this Agreement, and Client will not use the Application Services in whole or in part for any other use or purpose. Client will not, and will not allow any third party to (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Care52 Application by any means, or disclose any of the foregoing; (ii) except as expressly set forth in this Agreement, provide, rent, lease, lend, or use the Care52 Application for timesharing, subscription, or service bureau purposes; or (iii) sublicense, transfer or assign this Care52 Application or any of the rights or licenses granted under this Agreement.
      2. Client shall not use the Application Services for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law, including without limitation, those laws regarding stolen materials, obscene materials or child pornography.
      3. Client shall not transmit Content over the Application Services that infringes upon or misappropriates the intellectual property or privacy rights of any third party.
      4. Client understands the Application Services stream-line the normal operations of a medical practice and that the Application Services are not designed for medical emergencies. Client agrees to inform its Patients that this service is not designed for emergency use.
      5. Care52 and Client agree that only appropriately licensed Providers shall assess, diagnose, and recommend treatment for Patients. Client acknowledges and agrees that Care52 is not engaged in the practice of medicine through the provision of the services contemplated herein. Client shall take all actions required to ensure that its use of the Application Services is in compliance with all applicable laws, rules, regulations and professional standards. Client shall be solely responsible for verifying the identity and authenticity of Authorized Users. Neither party shall interfere with, control, or otherwise influence the physician-patient relationship established between a Physician and a Patient. Client shall take all reasonable precautions to ensure that the Application Services are utilized by its Authorized Users in a manner consistent with applicable ethical and legal requirements. Care52 SHALL HAVE NO OBLIGATION, RESPONSIBILITY OR LIABILITY FOR ANY PHYSICIAN'S PROVISION OF PROFESSIONAL SERVICES.
      6. Nothing in this Agreement shall be construed as an offer for payment by one party to the other party or any affiliate of the other party of any cash or other remuneration, whether directly or indirectly, overtly or covertly, for Patient referrals or for recommending or for arranging, purchasing, leasing or ordering any item or service.
    3. Client Content. Client hereby grants to Care52 a worldwide, non-exclusive, fully paid-up license to use, copy, modify, enhance, display, publish, distribute, create derivative works of and otherwise use the Content in any manner reasonably necessary to perform the Services. Client represents and warrants that it has all rights necessary to grant Care52 the foregoing license. Client further represents and warrants that Client owns or all right, title and interest in and to the Content or has a license granting it the rights necessary to permit it to grant the foregoing license. If Client licenses any Content, it shall not provide such Content to Care52 until it provides Care52 with a copy of the license.

  4. PAYMENTS

    1. Fees. Client agrees to pay Care52 for the performance of the Services in accordance with the rates and fees specified in the Service Order. On each one year anniversary of a Service Order, Care52 may increase the rates and fees set forth in such Service Order by up to the annual percentage change reflected in the twelve (12)-month non-seasonally adjusted CPI-U, U.S. City Average published by the U.S. Bureau of Labor Statistics and found on the website: http://www.bls.gov/cpi/. Care52 shall give Client notice of such increase prior to its effective date. Unless otherwise set forth in the Service Order, all payments shall be made in United States dollars no later than thirty (30) days after the date of invoice. All payments not received when due shall accrue interest at a rate per month of one and one-half percent (1.5%). Client may dispute all or part of any invoice in good faith by providing Care52 with written notice of such dispute within thirty (30) days after the receipt of such disputed invoice.
    2. Taxes. The fees payable under this Agreement shall not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties now in force or enacted in the future imposed on the transaction and/or the delivery of the Services, all of which Client shall be responsible for and pay in full except those taxes based on the net income of Care52.

  5. TERM AND TERMINATION

    1. Term. Unless earlier terminated in accordance with its terms, each Service Order will have the initial term set forth in the Service Order (the "Initial Term"). Unless otherwise set forth in a Service Order, upon the expiration of each Initial Term, the term of a Service Order will renew automatically for additional terms of one (1) year each ("Renewal Term", and together with the Initial Term, the "Term"), unless either a party notifies the other party, at least ninety (90) days prior to the end of the then-current Term that it has elected to terminate such Service Order, in which event such Service Order will terminate at the end of such Term. Unless earlier terminated in accordance with its terms, this Agreement will expire on the date the last Service Order then in effect expires or is terminated pursuant to the terms and conditions set forth in this Agreement.
    2. Termination for Cause. Except as otherwise provided herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for thirty (30) days following written notice to the breaching party.
    3. Effect of Termination. Upon the expiration of this Agreement Care52 will terminate Client's access to the Application Services and will cease the provision of all Services.

  6. WARRANTIES, DISCLAIMER.

    1. Care52 hereby warrants that during the term of this Agreement, the Application Service will perform, in all material respects, in accordance with its then-current published functional specifications. In the event of any failure of the Application Services to perform in a material respect to such specifications, Care52 will, as Client's sole and exclusive remedy for such failure, repair the applicable Application Service.
    2. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 6.1, Care52 MAKES NO WARRANTIES REGARDING THE SERVICES, AND Care52 HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR SECURITY. Care52 DOES NOT WARRANT THAT ACCESS TO OR USE OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE APPLICATION SERVICE WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. Care52 DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. The provisions of this Section allocate the risks under this Agreement between Care52 and Client. Care52's pricing reflects this allocation of risk and the limitation of liability specified herein

  7. INDEMNITY.

    1. Indemnification by Care52. Care52 will defend, indemnify and hold Client harmless from and against any action brought against Client by a third party to the extent that it is based upon a claim that (i) the Application Services (or any portion thereof), as provided by Care52 to Licensee under this Agreement and used within the scope of this Agreement, infringes any U.S. copyright, trademark, trade secret or other intellectual property right recognized under U.S. law, (ii) Care52 is in violation of any term, provision, representation or warranty in this Agreement, and (iii) Care52 or the Application Services (or any portion thereof) is not in compliance with applicable U.S. law; and Care52 shall pay any costs, damages and reasonable attorneys' fees attributable to such claim that are awarded either by final judgment or settlement against Client. Notwithstanding the foregoing sentence, Care52 shall have no liability for any claim resulting from or arising out of: (a) any unauthorized modification of the Application Services by Client or any third party; (b) Client's use of other than the then current, unaltered version of the Application Services; (c) use, modification, operation or combination of the Application Services or any portion thereof with any programs, data, equipment or documentation not provided by Care52; (d) Care52's or its third party service providers' compliance with Client's designs, specifications or instructions; or (e) any claim for which Client is required to indemnify Care52 pursuant to Section 7.2. In the event the Application Services or any portion thereof becomes (or, in Care52's opinion, is likely to become) subject to any claim of infringement or misappropriation of third party rights, Care52 may, in its sole discretion: (x) procure for Client the right to continue to use the Application Services: (y) replace or modify the Application Services with a version of the Application Services that is not infringing: or (z) if Care52 cannot accomplish (x) or (y) using commercially reasonable efforts, terminate this Agreement or the affected Application Service without penalty. If Care52 terminates the Agreement pursuant to (z) above, Care52 will provide reasonable and customary transition services to Client at no additional charge. THIS SECTION 7.1 SETS FORTH THE ENTIRE LIABILITY OF Care52, AND CLIENT'S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS.
    2. Indemnification by Client. Client shall indemnify, defend and hold harmless Care52 from and against any claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys' fees and expenses) resulting from or arising out of: (a) any claim that any trademark, logo or trade name provided by Client for use or display on or in connection with the Application Services infringes upon or misappropriates any trademark, logo or trade name of any third party; (b) any claim that any Content infringe upon or misappropriate any patent, copyright, trademark, trade secret, privacy, publicity or other intellectual property or proprietary right of any third party; (c) any Patient's negligent or intentional misuse of the System or violation of any applicable law or regulation (including, without limitation, any improper or unauthorized transfer of funds from End User accounts via the System), (d) Client's failure to comply with laws, rules, regulations or professional standards.?7.3 Indemnification Procedures. The indemnification obligations of each party ("Indemnifying Party") under this Section 7 are subject to the following conditions: (a) The party seeking indemnification ("Indemnified Party") shall give the Indemnifying Party prompt notice in writing and in reasonable detail of any claim for which indemnification is sought; (b) the Indemnifying Party shall have the authority to control the defense and settlement of the claim (provided that the Indemnified Party shall have the right, but not the obligation, to participate at its own expense in the defense of such claim); and (c) the Indemnified Party shall give reasonable assistance to the Indemnifying Party to enable the Indemnifying Party to defend the claim. The Indemnifying Party shall not settle or compromise any claim without the prior written consent of the Indemnified Party if such settlement or compromise in any manner indicates that the Indemnified Party contributed to or was responsible for such claim, or if such settlement or compromise imposes any obligations upon the Indemnified Party or requires the Indemnified Party to take any action.

  8. CONFIDENTIAL INFORMATION.

    1. Except as expressly permitted in this Section 8, no party will, without the prior written consent of the other party, disclose any Confidential Information of the other party to any third party. Information will be considered Confidential Information of a party if either (i) it is disclosed by the party to the other party in tangible form and is conspicuously marked "Confidential", "Proprietary" or the like; or (ii) (a) it is disclosed by a party to the other party in non-tangible form and is identified as confidential at the time of disclosure; and (b) it contains the disclosing party's customer lists, customer information, technical information, pricing information, pricing methodologies, or information regarding the disclosing party's business planning or business operations. In addition, notwithstanding anything in this Agreement to the contrary, the terms of this Agreement will be deemed Care52 Confidential Information. Care52 may, in any manner, publicly announce the relationship with Client. Care52 may also develop, with customer review and approval, a business use case that may be used for Care52 marketing purposes.
    2. Other than the terms and conditions of this Agreement, information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
    3. Each party will secure and protect the Confidential Information of the other party (including, without limitation, the terms of this Agreement) in a manner consistent with the steps taken to protect its own trade secrets and confidential information, but not less than a reasonable degree of care. Each party may disclose the other party's Confidential Information where (i) the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other party with adequate time for such other party to seek a protective order; (ii) if in the opinion of counsel for such party, disclosure is advisable under any applicable securities laws regarding public disclosure of business information; or (iii) the disclosure is reasonably necessary and is to that party's, or its Affiliates', employees, officers, directors, attorneys, accountants and other advisors, or the disclosure is otherwise necessary for a party to exercise its rights and perform its obligations under this Agreement, so long as in all cases the disclosure is no broader than necessary and the person or entity who receives the disclosure agrees prior to receiving the disclosure to keep the information confidential. Each party is responsible for ensuring that any Confidential Information of the other party that the first party discloses pursuant to this Section 8 (other than disclosures pursuant to clauses (i) and (ii) above that cannot be kept confidential by the first party) is kept confidential by the person receiving the disclosure.

  9. Limitation of Liability.

    1. CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE APPLICATION SERIVCES, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY), REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
    2. DIRECT DAMAGES. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, Care52'S LIABILITY FOR DAMAGES OF ANY KIND WITH RESPECT TO ANY CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, THE SYSTEM, THE SOFTWARE, THE DOCUMENTATION, OR THE SERVICES, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) SHALL NOT EXCEED THE AMOUNT OF FEES INCURRED BY CLIENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH SUCH LIABILITY AROSE FOR THE AUTHORIZED SERVICE GIVING RISE TO THE CLAIM.
    3. The remedies expressly set forth in this Agreement shall be Client's sole and exclusive remedies in the event of any alleged breach by Care52 under this Agreement or arising out of or related to the subject matter of this Agreement. Client acknowledges that the limitations of liability contained in this Section 9 are a fundamental part of the basis of Care52's bargain hereunder, and Care52 would not enter into this Agreement absent such limitations. The limitations of liability in this Section 9 shall not apply to Client's obligation to pay Fees including, without limitation, any applicable Termination Fees.
    4. For purposes of this Section 9, the term "Care52" shall mean Care52, its parent, subsidiaries, and affiliates, and its and their respective officers, employees, and stockholders. The parties agree that such individuals and entities are express third party beneficiaries to the limitations under this Section 9.

  10. GENERAL PROVISIONS.

    1. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of North Carolina and, where applicable, federal law, without giving effect to the conflict-of-laws principles thereof. The parties agree that jurisdiction over and venue in any legal proceeding arising out of or relating to this Agreement will exclusively be in the state or federal courts located in Raleigh, North Carolina.
    2. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall be deemed omitted and the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
    3. Waiver. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
    4. Assignment. This Agreement shall be binding upon the parties' respective successors and permitted assigns. Client shall not assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of Care52, which consent shall not be unreasonably withheld. This Agreement, and the rights and obligations herein, may be assigned by Care52 to any person or entity without the written consent of the Client.
    5. Independent Contractors. Care52 is acting in performance of this Agreement as an independent contractor.
    6. Strategic Relationships. Care52 may enter into strategic relationships with third parties that may benefit Client by increasing patient requests. In such an event, Care52 shall be permitted to place appropriate links, icons or displays within the Care52 Application that is accessed as part of the Application Services. Although Care52 may include links providing direct access to third-party Internet sites as a convenience, the inclusion of a link does not imply endorsement of the linked site by Care52. Care52 does not take responsibility for the content or information contained on those other sites, and does not exert any editorial or other control over those other sites. Care52 does not take responsibility for the privacy policies and practices of these third-party links.
    7. Notices. All notices required to be given under the terms of this Agreement or which any of the parties hereto may desire to give hereunder, shall be in writing, shall be delivered via one of the following methods, and shall be deemed to have been received: (i) on the day given delivered by hand (securing a receipt evidencing such delivery); or (ii) on the second day after such notice is sent by a nationally recognized overnight or two (2) day air courier service, full delivery cost paid; or (iii) on the fifth day after such notice was mailed, registered mail, prepaid, return receipt requested, and addressed to the party to be notified at the addresses set forth in the Service Order.
    8. Survival. All provisions of this Agreement relating to proprietary rights, payment of fees accrued, confidentiality and non-disclosure, indemnification and limitation of liability shall survive the completion of the Services or any termination of this Agreement.
    9. Legal Fees. In the event of any proceeding or lawsuit brought by Care52 or Client in connection with this Agreement, the prevailing party shall be entitled to recover its costs and legal fees (including, but not limited to, allocated costs of in-house staff counsel) and court costs.
    10. Force Majeure. Neither party will be liable to the other for failure to meet its obligations under this Agreement where such failure is caused by events beyond its reasonable control such as fire, failure of communications networks, riots, civil disturbances, embargos, storms, acts of terrorism, pestilence, war, floods, tsunamis, earthquakes or other acts of God.
    11. Subsequent Modifications. No amendment, alteration or modification of this Agreement shall be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
    12. Entire Agreement. This Agreement and any exhibits and schedules attached hereto, constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in this Agreement.
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