MSLA

Nextech Master Software License Agreement

Last Updated 5/1/2016

1.0 Introduction

1.1 Parties: This Nextech Software License Agreement (“Agreement”) is entered into between Nextech Systems, LLC., a Florida corporation located at 5550 West Executive Drive, Suite 350, Tampa, Florida 33609 (“Nextech”) and the customer of Nextech identified in the signature portion to this Agreement or the Supplemental Schedule (the “Customer”) (collectively the “Parties”).

1.2 Agreement: This Agreement, together with each Supplemental Schedule, Purchase Agreement, Support Terms and/or any other annex or amendment made a part hereto, contains the terms and conditions under which the Customer acquires the right to use the Nextech software.

2.0 Definitions

2.1 Client Server License: means that the Software identified in the Supplemental Schedule is licensed to Customer under this Agreement for installation and use on Customer’s own computer network.

2.2 Documentation: means the relevant user guides, operational procedures, training materials, specifications and instruction material relating to the Software, including any copies thereof, in any form, as generally available from time to time to Customer in the ordinary course of Nextech’s business.

2.3 Electronic Data: means all information regardless of form that the Customer has entered or transferred through the Software. Electronic Data shall include, but is not limited to, digital information regarding client data, Electronic Protected Health Information (PHI) as defined by the Health Insurance Portability and Accountability Act of 1996, HITECH and HIPAA Omnibus Rules (HIPAA), and other information howsoever designated.

2.4 Hosted Services License: means that the Software identified in the Supplemental Schedule is licensed to Customer under this Agreement on a “software-as-a-service” model where the Software resides on Nextech’s (or its data center provider’s) networks and the Customer accesses the Software through the internet.

2.5 License Term: means that period of time, as set forth in the applicable Supplemental Schedule, for which a license for the Software is effective. In the event that a Supplemental Schedule does not identify a specific License Term: (i) the License Term shall be three (3) years for Software licensed under either a Hosted Services License or a Subscription License; and (ii) perpetual for Software licensed under a Client Server License. The initial License Term shall commence upon the Effective Date of the Supplemental Schedule unless otherwise stated in the Supplemental Schedule.

2.6 Object Code: means the machine-readable form of the Software.

2.7 Software: means (a) the practice management, electronic medical records, and/or any other software product owned by Nextech as set forth in the Supplemental Schedule; (b) the related Documentation; (c) related Upgrades to the software and Documentation as provided hereunder; (d) all modifications, improvement, translations, adaptations or derivations of such software, Documentation, and Upgrades as may be provided to Customer hereunder; and (e) all copies of each of the foregoing. For the avoidance of doubt, the term Software shall be deemed to include any version of the Software made available to the Customer in accordance with the terms of this Agreement.

2.8 Subscription License: means that the Software identified in the Supplemental Schedule is licensed to Customer under this Agreement for a specific period of time as set forth in the Supplemental Schedule. Software licensed under a Subscription License is installed and used on a Customer’s own computer network unless otherwise set forth in the Supplemental Schedule.

2.9 Supplemental Schedule: means a Nextech generated form, attached to this Agreement or subsequently made a part hereof, including a Purchase Agreement, that sets forth which Software is being licensed by Customer (including, where applicable, the specific version of such Software), what type of license (Client Service License, Hosted Services License or Subscription License), the supply of Support, and/or agreement to additional terms and conditions as may be entered into from time to time. Additional terms and conditions set forth in each Supplemental Schedule shall apply only to the Software set forth in that Supplemental Schedule. As an additional Supplemental Schedule, the Parties shall, concurrent with the entering into of this Agreement, enter into a separate Business Associate Agreement (“BAA”), as that term is defined in the HIPAA Privacy Rule, which shall apply only to PHI, including Electronic PHI, to which Nextech has been granted access by the Customer. Nextech’s BAA is available at www.nextech.com/legal/BAA or such other location as Nextech shall make available to Customer.

2.10 Support: means the provision of Upgrades together with the provision of bug/error fixes and technical advice and consulting regarding the Customer’s access to and use of the Software, as may be available, from time to time in the ordinary course of Nextech’s business and subject to the Nextech standard Support Terms (as defined below).

2.11 Upgrades: means error corrections, maintenance releases and improvements made to the Software and as may be available from time to time in Nextech’s discretion. Upgrades that include increased or additional functionality to the Software may be provided as a part of Support as further set forth in Section 3.7 below or, at Nextech’s sole discretion, may only be available to Customer as a separately licensed product.

3.0 Software, Upgrades and Support

3.1 Grant of License:

a. Software Licensed under a Client Server License: Subject to Customer’s compliance with the terms and conditions of this Agreement, including the timely payment of all fees, Nextech hereby grants Customer a personal, non-exclusive, non-sublicensable, non-transferable and perpetual right and license to install, execute and otherwise use the Software, including any Upgrades to such Software provided under Support, and to use any related Documentation solely for the internal purposes of Customer.

b. Software Licensed under a Subscription License: Subject to Customer’s compliance with the terms and conditions of this Agreement, including the timely payment of all fees, Nextech hereby grants Customer a personal, limited, non-exclusive, non-sublicensable and non-transferable right and license to install, execute and otherwise use the Software during the License Term, including any Upgrades to such Software provided under Support, and to use any related Documentation, solely for the internal purposes of Customer.

c. Software Licensed under a Hosted Services License: Subject to Customer’s compliance with the terms and conditions of this Agreement, including the timely payment of all fees, Nextech hereby grants Customer a personal, limited, non-exclusive, non-sublicensable and non-transferable right and license to access and use the Software during the License Term, and to use any related Documentation, solely for the internal purposes of Customer. Nextech will provide such Software in accordance with the performance levels set forth in Nextech’s standard Service Level Agreement (“SLA”) as such may be changed by Nextech from time to time. Nextech’s SLA is available at www.nextech.com/legal/ServiceAgreement or such other location as Nextech shall make available to Customer.

3.2 Additional Restrictions and Metrics: The Software may have additional restrictions or metrics that will be set forth in the Supplemental Schedule, such as being licensed on a per server or limited to use in a single location or by a single legal entity. For Software licensed on a “Per-Physician” basis, Customer must purchase a license for each physician in the practice (each a “Physician”) and only that particular named Physician and that Physician’s staff (on the Physician’s behalf) may access or use that particular license for the Software. Per-Physician licenses cannot be shared between or used on behalf of, more than one Physician. For further clarity, unless otherwise agreed in writing, (i) all treating and billing providers must have purchased their own individual license to the “Practice Management” and “Electronic Medical Records” modules of the Software; and (ii) for Software licensed under a Hosted Services License, Customer must purchase a separate license for each individual user of the Software, each of whom must their own unique account name in order to access the Software. “Account names” may not be shared between users of the Software. For the avoidance of doubt, any third parties allowed to access the Software under this Agreement may not include any competitors of Nextech.

3.3 Other Obligations of Customer:

a. Customer is responsible for providing all hardware necessary in order to operate or access the Software. The Customer agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party: i) copy (except for back-up or archival purposes), modify, adapt, translate, create derivative works, disassemble, decompile or otherwise reverse engineer the Software and related services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (ii) access to Nextech's proprietary database fields and the data contained in the Software to any party for whatever purpose without the prior written consent of Nextech; (iii) sell, lease, license, sublicense, or otherwise encumber any portion of the Software or Documentation; (iv) use the Software to provide processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a “service bureau” basis or otherwise use or allow others to use the Software for the benefit of any third party; (v) provide, disclose, divulge or make available to, or permit use of the Software by persons other than Customer’s employees or agents who have signed a confidentiality agreement consistent with the terms and provisions herein, without Nextech’s prior written consent; or (vi) use the Software, or allow the transfer, transmission, export, or re-export of the Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency.

b. In addition, Customer agrees that it will not use the Software to take any action that: (i) intentionally or knowingly violates any applicable law or regulation or is legally libelous, defamatory, indecent, obscene or pornographic; (ii) would violate copyright, trademark, trade secret or other property right of any third party; (iii) involves the addition, removal or modification of identifying network header information in an effort to deceive; (iv) uses the Software to access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Nextech's or another entity's computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in access to or the corruption or loss of data; (vi) uses the Software to collect, or attempt to collect, personal information about third parties without their valid consent; (vii) interferes with or disrupts the integrity or performance of the Software or the data contained therein or (viii) harasses or interferes with another customer’s or user's use of the Software.

c. Customer is responsible for assigning account credentials (including login information and passwords) for each of its users. Customer will be responsible to ensure that all users keep the account credentials confidential and secure and that Customer implements and maintains appropriate administrative, physical and technical safeguards to prevent unauthorized use of the Software. If someone accesses the Software using the account credentials of a Customer user, Nextech will rely on those account credentials and will assume that user is authorized to access the Software. Customer is solely responsible for any and all use of user account credentials and all activities that occur under or in connection with such account credentials or by any Customer users. Without limiting any rights which Nextech may otherwise have, Nextech reserves the right to take any and all actions that it deems appropriate to address account credential security issues, including, without limitation, terminating account credentials, changing a password, or requesting additional information to authorize activities related to a user. In no event and under no circumstances will Nextech be liable for any damages or other liability arising from any such action or any compromise of the confidentiality of any account credentials arising from Customer’s or its users acts or omissions. Customer will notify Nextech immediately if it becomes aware that any account credentials have been or are being used without authorization.

d. Customer is responsible for the uploading of data (including patient data) to the Software. In uploading data, Customer shall comply with the specifications set forth in the applicable Documentation. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data uploaded or otherwise made available by Customer and its users. Prior to making any data available to the Software Customer will ensure that all third party consents and/or permissions that may be necessary and appropriate with respect to such data have been obtained. Customer represents and warrants that data made available to Nextech through the Software is not the primary source or repository of the data. Accordingly, Nextech will not be liable for the loss of any data, except that Nextech will cover the reasonable out-of-pocket cost of re-uploading into the Software data that is lost by Nextech in a negligent manner or otherwise in breach of this Agreement.

3.4 Verification and Audit: For Software licensed under a Client Server License or a Subscription License, Customer shall keep and maintain full, accurate and detailed records regarding the license and the number of end users of the Software. At Nextech’s written request, Customer shall furnish Nextech with a signed certification verifying that the Software is being used in accordance with the terms of this Agreement and applicable Supplemental Schedules. Nextech may audit Customer’s use of such Software to ensure that Customer is in compliance with the terms of this Agreement and applicable Supplemental Schedules. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities; Customer shall provide Nextech reasonable access to the relevant Customer records and facilities. If an audit reveals that Customer has underpaid fees to Nextech, Customer shall be invoiced for such underpaid fees based on the Nextech’s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the license fees previously paid by Customer, then Customer shall also pay Nextech’s reasonable costs of conducting the audit.

3.5 Ownership and Intellectual Property: The Customer acknowledges that the Software, any derivative works of or modifications to the Software and all copyrights, patents, trade secrets and other rights, title and interest therein, are the sole property of Nextech and agrees that the Customer shall gain no right, title or interest in the Software by virtue of this Agreement and any Supplemental Schedule other than the non-exclusive right of use and access granted herein and therein. Without limiting the foregoing, Customer specifically acknowledges that Nextech has exclusive ownership rights to the intellectual property embodied in the Software and by operation of this Agreement assigns to Nextech any customer suggestions and/or content resulting in modification, improvement, translation, adaptation or derivation of the Software, therein. Customer agrees to take all reasonable steps to protect the Software from unauthorized copying, possession, access or use. Upon Customer becoming aware of any such unauthorized copying, possession, access or use, Customer shall promptly notify Nextech and provide Nextech with complete details, assist Nextech in preventing the recurrence thereof, and cooperate with Nextech in any litigation or proceedings reasonably necessary to protect the rights of Nextech.

3.6 Compliance: Nextech shall use commercially reasonable efforts to maintain compliance with Federal laws and regulations for software used by medical practices, including HIPAA, the International Classification of Diseases (“ICD”) and Meaningful Use (as defined in the relevant Medicare and Medicaid regulations). Nextech meets the standards of Meaningful Use certification for Stage I and Stage II (2014 Complete Electronic Healthcare Records (“EHR”) Standards). In the event the Federal Government issues standards for Stages III and IV, Nextech shall make all commercially reasonable efforts to ensure the Nextech product is eligible to meet and maintain all of the required certifications.

3.7 Support: If the Customer has acquired Support and is current on its payment obligations (which for Software licensed under a Hosted Services License is included in the fees paid for such Hosted Services License), Nextech shall, unless specified otherwise in the Supplemental Schedule, make available remote technical support for the Software as set forth in Nextech’s standard support terms (“Support Terms”) as such may be changed by Nextech from time to time. Nextech’s Support Terms are available at www.nextech.com/legal/SupportAgreement or such other location as Nextech shall make available to Customer.  

3.8 Integration of Third Party Intellectual Property: The Software may include functionality, software code, data or other information obtained from third-party providers and therefore may be subject to additional third-party terms, conditions and requirements (“Third Party Terms”). The applicable Third Party Terms are available at www.nextech.com/legal/ThirdPartyAgreement or such other location as Nextech shall make available to Customer. Use of the Software constitutes agreement to the applicable Third Party Terms. The Third Party Terms may be changed by Nextech from time to time. Nextech shall use commercially reasonable efforts to provide notice to Customer in the event of any change to the Third Party Terms.

3.9 Nextech Online Content: For Software licensed under the Client Server License, certain integrated modules, functionality, services and content including but not limited to Lab and third party interfaces, NexWeb Patient Portal, NexReminder, ePrescribing, Nextech Analytics and Nextech Webinars (“Nextech Online Content”), may not be installed on Customer’s networks but will reside on Nextech servers. This Nextech Online Content will be accessed directly through the Software and such access may be subject to Customer’s continued purchase of Support Services. Nextech reserves all rights of ownership and availability of use for the Nextech Online Content, including but not limited to, the right to discontinue access to the Nextech Online Content in the event of breach of this Agreement or to suspend or terminate access to the Nextech Online Content in the event the Customer is not current on, or fails to renew, Support Services.

4.0 Term and Termination

4.1 Term of Agreement: The term of this Agreement shall be deemed effective on the date of signed acceptance by Nextech (the “Effective Date” of the Agreement) and shall continue in effect until terminated in accordance with the terms below.

4.2 Term of Supplemental Schedules: The term of each Supplemental Schedule shall be deemed effective on the date of signed acceptance by Nextech (the “Effective Date” of the Supplemental Schedule) and shall continue in effect for the term set forth in the Supplemental Schedule or, if no term is stated in the Supplemental Schedule, then for the License Term of the Software set forth in the Supplemental Schedule.

4.3 Renewal of License Terms: Subject to Section 2.5, the License Term for the Software shall commence on the Effective Date of the Supplemental Schedule (unless otherwise agreed to by the parties) and shall continue for the License Term set forth in the Supplemental Schedule. For Software licensed under a Hosted Services License or a Subscription License, the License Term shall automatically renew for additional one (1) year periods, unless either party provides notice to the other party no less than sixty (60) days prior to the end of the then current License Term of that party’s intention to not renew the License Term, in which case the License Term shall expire at the end of the then current License Term.

4.4 Termination:

a. For Cause: Nextech reserves the right to terminate this Agreement or an applicable Supplemental Schedule for cause upon thirty (30) calendar days written notice if the Customer breaches any of its material obligations under this Agreement or the applicable Supplemental Schedule and thereafter fails to cure such breach, if curable, to the reasonable satisfaction of Nextech within the first ten (10) days following the Customer’s receipt of such notice of termination. Nextech’s termination of a particular Supplemental Schedule for cause shall not affect separate, unrelated Supplemental Schedules, which shall continue in full force and effect, unless otherwise terminated hereunder. Nextech’s termination of the Agreement for cause shall automatically terminate all outstanding Supplemental Schedules.

b. By Either Party: Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party in the event that there are no active Supplemental Schedules.

4.5 Effects of Termination: Upon termination of this Agreement or a Supplemental Schedule, the Customer shall, no later than the effective date of such termination: (a) discontinue the use of and purge all Software from all computer systems, terminals, personal computers, storage media, and any and all other devices and files with which the Software is used; (b) if applicable, return to Nextech all copies (including partial copies) of the Software (and all other Confidential Materials as defined in Section 8.2, below) in Customer’s possession; and (c) if requested by Nextech, certify to Nextech in writing that it has complied with the foregoing obligations. The termination of this Agreement for any reason shall not extinguish or diminish the Customer’s obligation under Section 8 to maintain the confidentiality of the Software (and all other Confidential Materials as defined in Section 8.2, below), which obligation shall continue and survive termination of this Agreement or any Supplemental Schedule.

4.6 Return of Electronic Data: In the event of the termination or expiration of a Hosted Service License, Nextech shall keep all Electronic Data available to Customer for a period of sixty (60) days after such termination or expiration, after which, Nextech may destroy or delete such Electronic Data with no liability to Customer. During such sixty (60) day period, upon written request by Customer, Nextech shall provide Customer with electronic files containing all available Electronic Data. Nextech will deliver the data files in accordance with industry standards. For Client Server Licenses and Subscription Licenses, if the Customer decides to discontinue using the Software; Nextech expects that the Customer will extract the needed data from the Software on their own. Provided that a Customer is current on Support, Customer may, at any time, request a backup copy of the Patient Demographics and Patient Charts and Nextech shall use commercially reasonable efforts to provide such services for a reasonable and customary fee.

4.7 Suspension of Hosted and Subscription Service Licenses: Nextech reserves the right to suspend access to Hosted and Subscription Services Licenses if Customer has undisputed amounts more than ten (10) days past due, until all such undisputed amounts are paid in full. Nextech also reserves the right to suspend Customer’s access to the Software if Nextech reasonably determines that Customer or any users: (i) use of the Software disrupts or poses a security risk to the Software, may harm Nextech’s systems or may subject Nextech or any third-party to liability; (ii) are using the Software for fraudulent or illegal activities; (iii) are using the Software in breach of this Agreement; or (iv) Nextech is required by law, or a regulatory or government body to suspend access to the Software.

5.0 Limited Warranties, Disclaimers and Remedies, Indemnification

5.1 Intellectual Property Rights: Nextech warrants to the Customer that the Software does not violate any United States patent, copyright or other third party intellectual property right. If an action is brought against the Customer claiming a breach of such warranty, Nextech will defend the Customer in the infringement action (provided that Nextech is given prompt written notice of any third party claim and is given information, reasonable assistance and sole authority to defend or settle the claim). In connection therewith and as Nextech’s sole obligation in respect of a breach of this warranty, Nextech shall either, at its option: (a) obtain for the Customer the right to continue using the affected Software or (b) modify or replace such Software so as to eliminate the infringement. Nextech shall not have any liability hereunder if any claim of infringement: (i) is asserted by a subsidiary or affiliate of the Customer; (ii) results from the Customer's alteration of the Software; (iii) relates to a third party Software product not owned by Nextech; or (iv) results from use of any Software in combination with any non-Nextech product. This paragraph states the entire liability of Nextech and the Customer’s sole and exclusive remedies with regards to intellectual property infringement.

5.2 Software Limited Warranty and Disclaimer: Nextech warrants for a period of ninety (90) days from the Effective Date of the Supplemental Schedule (“Warranty Period”) that the Software will materially comply with the specifications for the Software set forth in the Documentation. Any warranty claim must be initiated by Licensee, in writing, during the Warranty Period. Provided that the warranty issue is reproducible by Nextech, Nextech shall, within thirty (30) days of its receipt of Licensee’s written notice: (i) correct such error; (ii) provide Customer with a plan for correcting the error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Nextech, then Nextech may terminate the license and refund the amounts paid for such Software to Customer.

5.3 Exclusions: The foregoing warranties shall not apply to the extent that any alleged infringement or defect derives from: (a) a combination of the Software with any program, equipment or device not supplied by Nextech or identified in a Supplemental Schedule; (b) any modification or customization of the Software by or on behalf of the Customer; or (c) the Customer’s failure to properly use or access the Software, as appropriate, or access or install any Upgrades. No employee or agent of Nextech is authorized to give a greater or different warranty than as expressly provided for herein.

5.4 Disclaimer of Other Warranties: Except as provided in this Section 5, all other warranties, conditions, representations, indemnities and guarantees, whether express or implied, arising by law, custom, oral or written statements of Nextech or otherwise (including, without limitation, any warranties of merchantability, fitness for a particular purpose, or of error-free and uninterrupted use) of the Software, services and any related Support are hereby superseded, excluded and disclaimed by Nextech. Neither this Agreement, any Supplemental Schedule nor any documentation furnished in relation to this Agreement is intended to provide, either express or implied, any warranty that the Software, Support and/or any other services provided by Nextech will be uninterrupted, timely or error free.

5.5 Customer Undertakings: The Customer assumes all rights and liabilities for results obtained by its use, access and/or implementation of the Software, whether such results are used singly or in combination with other hardware, software or products. For Software licensed under a Client Server License or a Subscription License, the Customer will be responsible for use of all hardware, including but not limited to, operating procedures, audit controls, accuracy and security of input or output data, restart and recovery routines and other procedures necessary for the Customer’s intended use of the Software. In addition, the Customer: (i) shall maintain back-up data necessary to replace critical Customer Data in the event of loss or damage to such data from any cause and regardless of the cause of loss, Nextech shall not in any way be liable thereof; and (ii) Customer shall ensure that its users are, at all times, educated and properly trained in the proper use, access and operation of the Software and that the Software are used in accordance with any and all applicable manuals, documentation and instructions.

5.6 Additional Customer Warranty Rights: This Section 5 provides the Customer with specific legal rights and the parties acknowledge that the Customer may also have other rights which vary from state to state.

5.7 Nextech Indemnification: Nextech shall indemnify and hold harmless Customer from and against any third party claims, including reasonable legal fees and expenses Customer actually incurs, based upon infringement of any United States copyright or patent by the Software. Customer agrees to notify Nextech of any such claim promptly in writing and to allow Nextech to control the proceedings. Customer agrees to cooperate fully with Nextech during such proceedings. Nextech shall defend and settle at its sole expense all proceedings arising out of the foregoing. In the event of such infringement, Nextech may replace, in whole or in part, the Software with a substantially compatible and functionally equivalent computer program or modify the Software to avoid the infringement.

5.8 Customer Indemnity: Customer will indemnify, defend, and hold Nextech, its individual directors, officers, employees and agents, harmless from and against any claims, actions or proceedings, arising out of any third-party claim: (a) resulting from Customer's reliance on results obtained through the use of the Software; and (b) that the Electronic Data or Nextech’s transmission to Customer or hosting of the Electronic Data infringes or violates the rights of a third party or violates an applicable law.

6.0 Remedy Limitations

6.1 Limitation of Liability: IN NO EVENT SHALL NEXTECH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, 3RD PARTY COST, PRACTICE STAFF TIME COSTS INCLUDING BUT NOT LIMITED TO THOSE COSTS RELATED TO ADAPTING NEXTECH SOFTWARE TO CUSTOMER’S HARDWARE AND NETWORK SYSTEM, OR ANY OTHER PECUNIARY LOSS), WHETHER FORESEEABLE OR NOT FORESEEABLE AND WHETHER ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY IN TORT OR OTHERWISE, AND WHETHER BASED ON THIS AGREEMENT, ANY SUPPLEMENTAL SCHEDULE OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO: (I) THE USE OR ACCESS OF OR THE INABILITY TO USE OR GAIN ACCESS TO THE SOFTWARE, EVEN IF NEXTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) THE USE BY THE CUSTOMER AND THE CUSTOMER'S PRACTICE OF ANY DOCUMENTS, DOCUMENT TEMPLATES AND/OR PROCEDURE SPECIFIC CONTENT PROVIDING PATIENT EDUCATION AND/OR INFORMED CONSENT INFORMATION EITHER PROVIDED BY NEXTECH IN ITS ORIGINAL FORM OR AS MODIFIED BY THE CUSTOMER, WHETHER OR NOT DISTRIBUTED TO CUSTOMER'S PATIENT(S).

6.2 Remedies: THE CUSTOMER AGREES THAT NEXTECH'S TOTAL LIABILITY TO THE CUSTOMER OR ANY THIRD PARTY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL, IN ANY EVENT, NOT EXCEED ONE YEAR’S ONGOING FEES FOR USING THE SOFTWARE.

6.3 Applicable Law: Notwithstanding the foregoing, this Section 6 will not apply when and to the limited extent that applicable law specifically requires liability despite the foregoing exclusions and limitations.

7.0 Electronic Data

7.1 Ownership of Electronic Data: Customer is the sole and exclusive owner of all Electronic Data, whether or not provided to any other party under this Agreement. Nextech will not use Electronic Data for any purpose other than that of providing the Software or rendering the Services under this Agreement, nor sell, assign, lease, or dispose of Electronic Data. Customer assumes full responsibility for its employees, vendors, representatives, agents, and its clients (“Customer Representatives”) with respect to the transmission of Electronic Data sent directly by Customer to Nextech. Customer must ensure that all Customer Representatives provide such Electronic Data to Nextech via either an encryption process or a secure transport mechanism. Customer assumes full responsibility to safeguard against unauthorized access and provide appropriate protection of its Electronic Data prior to and during the transmission or transfer of its Electronic Data to Nextech. Customer and Nextech acknowledge that the accuracy of delivering the results from the Software depends upon the accuracy and completeness of the Electronic Data. Customer accepts sole responsibility for errors in the Software to the extent resulting from inaccurate or incomplete Electronic Data supplied to Nextech by Customer or Customer Representatives. Notwithstanding the foregoing, Nextech has the right to use: (i) the Electronic Data for benchmarking purposes provided that Nextech completely de-identifies all such Electronic Data; and (ii) anonymous aggregated patient-level data which may be used by Nextech for any reason; either of which may be accessed and used by Nextech without notice to Customer. Aggregated patient-level data is consolidated data relating to multiple patients, and therefore cannot be traced back to a specific patient, practice or any level not permitted by the HIPAA Omnibus Rules, (such as incidences of diseases). Aggregated patient-level data is typically used for the generation of routine reports and indicators, and most importantly, strategic planning within the health system.

7.2 Liability: For Software licensed under a Client Server or a Subscription License, Nextech shall not be liable to Customer for any loss of any Electronic Data unless caused by Nextech willful misconduct or gross negligence. For Software licensed under a Hosted Services Licenses, Nextech shall implement reasonable and appropriate security procedures as set forth below to protect Electronic Data from unauthorized access by physical and electronic intrusion. Unless Nextech fails to perform the foregoing obligations, the Parties agree that Nextech shall not, under any circumstances, be held responsible or liable for situations (1) where data or transmissions are accessed by third parties through illegal or illicit means or (2) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses or flaws unknown to Nextech at the time. Nextech will promptly report to Customer any unauthorized access to Electronic Data promptly upon discovery by Nextech.

7.3 Security Generally: Nextech represents and warrants that Nextech, its partners, and/or its vendors, will maintain the Electronic Data in a manner that conforms to applicable laws, utilizing generally accepted industry standard data management practices and no less than reasonable measures in the circumstances as it concerns environmental stability, data backup, backup frequency, media retention, data loss prevention, data/system security, and contingency plans/disaster recovery. Access to Electronic Data will be restricted to those who have been properly trained and instructed as to security and privacy policies, controls and procedures.

7.4 Access to Electronic Data: Nextech may access Electronic Data as necessary to identify or resolve technical problems or respond to problems with the Services. Notwithstanding any other provision, Nextech may disclose Electronic Data if Nextech determines that such action is reasonably necessary: (i) to comply with the law, regulatory requirements, or legal or regulatory process; (ii) to enforce this Agreement; or (iii) to respond to claims that you are using the Services to perform or support activities that violate the law or the rights of others. Unless prohibited by law or legal process, Nextech will use its commercially reasonable efforts to not disclose your Electronic Data without giving you prior notice of the request for such disclosure and a reasonable period of time to respond to such request.

8.0 Confidentiality

8.1 Confidentiality: The Customer acknowledges that the information and the intellectual property contained in the Software and content (and other Confidential Material, as defined in Section 8.3, below) is confidential and contains trade secrets and proprietary data belonging to Nextech or its licensors, and that the presence of any copyright notices on the medium containing the Software does not constitute publication or otherwise impair the confidential nature thereof. The Customer shall implement all reasonable measures necessary to safeguard Nextech’s ownership in, and the confidentiality of the Software, including, without limitation (a) allowing its employees, agents and third parties, to the limited extent permitted herein, access to the Software only to the extent necessary to permit the performance of their ordinary services to the Customer and to require, as a condition to such access, that such persons comply with the provisions of this Section 8; (b) cooperating with Nextech in the enforcement of such compliance by the Customer’s employees, agents and third parties; (c) prohibiting the removal or alteration of any copyright or confidentiality labels or notices contained in the Software; (d) prohibiting the copying and use of the Software except as permitted in this Agreement and (e) refrain from building a competitive product or service or otherwise copying any ideas, features, functions or graphics of the Software. The Customer acknowledges that use or disclosure of the Software in violation of this Agreement may cause irreparable harm to Nextech. The Customer agrees therefore, that without limiting any other rights and remedies, including collection of monetary damages, in the event of a perceived breach by the Customer of this Section 8, Nextech shall be entitled to seek immediate injunction relief without posting of a bond. In addition, the Customer agrees to not (a) permit access to the Software by any third party or (b) otherwise disclose the Software to any party other than Nextech whose function is to provide the Customer with day-to-day support of the Software.

8.2 Confidential Materials: For purposes of this Section 8, "Confidential Materials” shall mean (i) this Agreement, each Supplemental Schedule, all price proposals, order forms, estimates and invoices sent to Customer by Nextech and any Software products, Support, Upgrades, the method of access to the Software and other services made available by Nextech, intellectual property, know-how, show how, technical data, specifications, product capabilities, instructions, manuals, guides, systems, processes, designs, methods, practices, trade secrets, software, firmware, devices, diagrams, drawings, notes, sketches, videos, sales and technical bulletins, and all copies and electronic files thereof, and (ii) all other information, whether or not reduced to writing, relating to the design, creation, use, marketing, license, support and service related to the Software and the method of access to the Software, as well as any other information relating to the business of Nextech that may be divulged to the Customer that is not generally known in the trade and is confidential and/or proprietary to Nextech. No information or materials shall qualify as Confidential Materials if they (i) are or become, through no fault of the Customer, available to the public, (ii) are obtained by the Customer from a third party without breach of any agreement with, or obligation of confidentiality to, Nextech, or (iii) are required by law or a court or government agency to be disclosed.

9.0 Payment

9.1 Payment of fees: All fees are due and payable upon the payment terms specified in each Supplemental Schedule and/or Purchase Agreement signed by the Customer without regard to any equity, set-off or counterclaim.

All prices are exclusive of taxes and other duties and charges howsoever designated, which, to the extent applicable, shall be borne exclusively by the Customer and, to the extent required by law, collected by Nextech from the Customer.

If the Customer fails to pay any amount payable by it, Nextech shall be entitled to: (a) charge the Customer interest on the overdue amount, from the due date up to the date of actual payment, after as well as before judgment, at the rate of one percent (1%) per month and/or (b) suspend all further service under this Agreement and/or any Supplemental Schedule, including Support, until payment has been made in full.

The fees paid by the Customer are non-refundable and the Customer understands and acknowledges that Nextech has a “no return” and “no refund” policy.

10.0 Other Provisions

10.1 Software and Documents Do Not Constitute Medical or Legal Advice: The Customer acknowledges and agrees that nothing contained in the Software, Support and any other services made available by Nextech or in any of the documents, document templates or procedure-specific content provided in the Software database which is merged with document templates, is to be construed as medical and/or legal advice, and the Customer shall, with the Customer's specialized professional judgment and with competent legal counsel where appropriate, review such documents, document templates or procedure-specific content provided in the Software database before providing the output to any patient (or other party) of the Customer.

10.2 Identification of Nextech: The Customer may not display the name, trademark, logo or other identifying mark of Nextech on any output to any patient (or other third party) of the Customer.

10.3 Transferability: This Agreement (including each Supplemental Schedule), any rights under it, including without limitation the Software, Support and any other services provided by Nextech, may be assigned by Nextech without notice to the Customer. This Agreement (including each Supplemental Schedule), any rights under it, including without limitation the Software, Support and any other services made available by Nextech, may not be assigned, granted, sublicensed, or transferred by the Customer without prior written consent from Nextech, which consent shall not be unreasonably withheld. Nextech agrees that upon request of the Customer providing full details of the contemplated transaction, and after Nextech’s determination in its reasonable discretion that the contemplated transaction will not jeopardize Nextech’s intellectual property, ownership of any licenses by the Customer may be transferred or assigned in cases such as purchase, merger, acquisition, buy-out, name change, corporate reorganization, and successor organization. Customer may also transfer the licenses from an out-going provider to an incoming provider. Nextech’s consent shall be contingent upon (i) the Customer being in good financial standing with the Nextech and not having any account balance beyond 90 days and (ii) payment by Customer of a customary transfer fee.

10.4 Governing Laws: This Agreement and each Supplemental Schedule will be considered as having been entered into in the State of Florida, and will be interpreted exclusively in accordance with the laws of the State of Florida without regards to its conflict of law provisions. The parties to this Agreement irrevocably and unconditionally consent to the exclusive jurisdiction and venue of the state and Federal courts located in Hillsborough County, Florida in connection with any action related to this Agreement. Acknowledging that the damages sustained by Nextech as a consequence of any material breach by the Customer of any of its obligations under this Agreement (including each Supplemental Schedule and/or Purchase Agreement) may be difficult or impossible to measure in monetary terms, the Customer hereby agrees that Nextech shall be entitled to an injunction temporarily and/or permanently restraining the commission or continuation of any such breach without any requirement to give an undertaking as to damages or in any way providing a bond or security for costs. Except as otherwise set forth herein, all remedies under this Agreement are cumulative.

10.5 Notice and Delivery: Notice under this Agreement and each Supplemental Schedule shall be in writing and addressed to the parties as indicated below, or as appropriately updated. Delivery under this Agreement occurs upon actual delivery or three (3) days after deposit with the U.S. Postal Service as Certified Mail, whichever is earlier.

10.6 Force Majeure: Except for the Customer’s payment obligations, a party shall not be liable for any delay or failure to perform its obligations in this Agreement and each Supplemental Schedule if such delay or failure to perform is due to any cause or condition reasonably beyond that party's control.

10.7 Headings: The headings for the various Sections and sub-Sections shall not be considered part of this Agreement (or a Supplemental Schedule) and shall not be used in interpreting this Agreement (or a Supplemental Schedule).

10.8 Unenforceability: It is intended that this Agreement and each Supplemental Schedule shall not violate any applicable law. If, at any time or for any reason, any provision becomes unenforceable or invalid, the remaining provisions shall remain unaffected and continue with the same effect as if such unenforceable or invalid provision had not have been inserted herein.

10.9 Compliance With Laws: The Customer shall, at its own expense, use the Software in a careful and proper manner and both Parties shall comply with and conform to all laws, ordinances and regulations in any way relating to the possession, use and/or maintenance of the Software and Electronic Data, including but not limited to the applicable standards of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as amended and as published by the United States Department of Health and Human Services and those related to data privacy, international communications, consumer transactions and communications decency. If applicable, each party shall comply in all respects with the European Union Member State Data Protection Act (the "DPA"), and all subordinate legislation made pursuant thereto including all applicable amendments, revisions and re-enactments when processing all personal data (as defined in the DPA). Use of the Software is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 10.9.

10.10 Survival: Sections 3.2, 5, 6, 8 and 10 shall survive the expiration or termination of this Agreement and each Supplemental Schedule for any reason.

10.11 Disclosure of Agreement: The Customer shall not disclose the terms and conditions of this Agreement, all price proposals, estimates and invoices sent to Customer by Nextech, or any Supplemental Schedule to third parties (except the Customer’s auditors, legal counsel or third parties whose review is mandated by law) without the prior written authorization of Nextech. Nextech may announce the entering into of this Agreement or any Supplemental Schedule with the Customer in a press release and at any time after its Effective Date, refer to the Customer business relationship in marketing literature and any other publication.

10.12 Performance: Nextech shall use its reasonable endeavors to perform its obligations within any time stated in this Agreement and/or each Supplemental Schedule. Any such time is, however, approximate only and time for such performance shall not be of the essence.

10.13 Inconsistent terms: The terms and conditions set forth herein shall prevail over any inconsistent terms or conditions contained in or referred to in the Customer's purchase order, confirmation of order, or other document presented by Customer in connection with the entering of this Agreement or the subject matter hereof, or otherwise implied by law, trade custom, practice or course of dealing. In addition, in the event of conflict between the terms of a Supplemental Schedule and the provisions of this Agreement, the terms of a Supplemental Schedule shall govern and control.

10.14 Entire Agreement: This Agreement and each Supplemental Schedule is the complete and exclusive agreement between the Customer and Nextech relating to the Software, Services, Warranty, Support, and other subject matter as provided for herein, and supersedes any proposal or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. No variation of the terms of this Agreement or any different terms will be enforceable against the parties unless both parties give their express consent, including an express waiver of the terms of this Agreement, in writing signed by an authorized representative of each party.