SupraMed

Agreement

SupraMed Subscription Agreement

Last Updated 9/30/2015

A. SupraMed provides proprietary web-based software to its customers that is available via the Internet, and provides certain related customer support and proprietary services, as further defined in Exhibit A, “Application and Services.”

B.  Customer desires to utilize the Applications and Services made available by SupraMed on the terms and conditions set forth below.

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

SECTION 1 Definitions. In addition to those terms which are expressly defined herein, capitalized terms shall have the meanings ascribed to such terms in the text of any Exhibit, including without limitation, in Section 2 of the Standard Terms and Conditions attached as Exhibit E.

SECTION 2 Implementation and Provision of Applications and Services; Term; Termination; Fees.

2.1. Implementation and Provision of Applications and Services. SupraMed shall provide the Applications and Services in accordance with the terms of this Subscription Agreement, including any Subscription Order entered into by the parties. Upon the execution of a Subscription Order, SupraMed and Customer shall cooperate with respect to the implementation of the Applications and Services for use by Customer. Completion of such implementation shall constitute the “Effective Date” of this Subscription Agreement. Subject to receipt by SupraMed of the initial Implementation Fee and first month Subscription Fee in accordance with a Subscription Order, SupraMed shall provide the Applications and Services set forth in the Subscription Order during the Term (as defined below).

2.2. Term. The initial term of this Subscription Agreement shall be from the Effective Date through the date that is the one (1) year anniversary of the Effective Date (the “Initial Term”). Thereafter, this Subscription Agreement will automatically renew for successive one (1) year periods (each an“Additional Term” and, together with the Initial Term, the “Term”) unless either party notifies the other in writing at least sixty (60) days prior to the termination date for the then-current Initial Term or Additional Term of such party’s intention to terminate this Subscription Agreement.

2.3. Termination.

2.3.1 Either party may terminate this Subscription Agreement by delivering written notice thereof if the other party breaches any material term of this Subscription Agreement and such breach continues uncured for a period of thirty (30) days following notice of such breach.

2.3.2 SupraMed may terminate this Subscription Agreement by delivering written notice thereof to Customer immediately if Customer is subject to Insolvency Proceedings.

2.3.3 Either party may terminate this Subscription Agreement contemporaneously with terminating the Business Associate Subscription Agreement in accordance with Section 12 thereof.

2.3.4 In the event of any termination or expiration of this Subscription Agreement, Customer shall immediately pay SupraMed all outstanding Fees for Applications and Services made available or rendered pursuant to this Subscription Agreement.

2.3.5 Upon the expiration or termination of this Subscription Agreement for any reason, SupraMed shall cease making available and providing the Applications and Services to Customer and Customer shall cease all further use of the Applications and Services.

2.3.6 Any provisions of the Standard Terms and Conditions attached hereto as Exhibit E that are expressly stated to survive the termination or expiration of this Subscription Agreement shall, notwithstanding a termination under this Section 2.3, so survive.

2.3.7 Upon termination of this Subscription Agreement, SupraMed shall make available to Customer all Customer Data stored by SupraMed in connection with the Applications and Services. Customer Data will be provided to Customer upon request, and will be provided in electronic, human readable, industry standard format as soon as reasonably practicable.

2.4. Fees. In consideration for the Applications and Services provided hereunder, SupraMed shall charge, and Customer hereby agrees to pay, the Fees set forth in the Subscription Order, which Fees are subject to change or adjustment (i) as mutually agreed upon in writing by the parties; (ii) as provided in this Subscription Agreement; or (iii) upon written notice by SupraMed to Customer with respect to any change or adjustment that is to take place in any Additional Term if such notice is delivered at least one hundred twenty (120) days prior to the commencement of such Additional Term, with such change not to exceed the U.S. Consumer Price Index for the proceeding calendar quarter plus 10 percent (10%).

SECTION 3 Other Terms of the Subscription Agreement

3.1. Terms and Conditions. The Applications and Services provided hereunder are being made pursuant to and subject in all respects to the Standard Terms and Conditions set forth in Exhibit E.

3.2. Exhibits; Entire Subscription Agreement. Each of the following Exhibits is expressly incorporated herein and made a part hereof as if the contents thereof were set forth herein in their entirety:

  • Exhibit A – Applications and Services; Service Levels
  • Exhibit B – Minimum Hardware and Software Requirements
  • Exhibit C – Training
  • Exhibit D – Business Associate Subscription Agreement
  • Exhibit E – Standard Terms and Conditions

This Subscription Agreement reflects the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous understandings, agreements or arrangements with respect to the matters set forth herein. This Subscription Agreement may only be modified in writing signed by both parties and no party shall be deemed to have waived any of its rights or remedies contained in this Subscription Agreement without a written waiver signed by such party.

3.3. Notices. All notices, requests, demands and other communications that are required or may be given under the Subscription Agreement shall be in writing and shall be deemed to have been duly given (i) when received if personally delivered, (ii) upon electronic confirmation of receipt, if transmitted by telecopy or facsimile, (iii) the next business day after it is sent, if sent for next day delivery to a domestic address by a nationally recognized overnight delivery service (i.e., Federal Express), (iv) three business days from the date of deposit in the U.S. mails, if sent by certified or registered U.S. mail, return receipt requested, or (v) on the same business day sent (or on the next business day if sent outside of normal business hours), if sent as an email PDF attachment. In each case such notice shall be addressed to a party at the address for such party set forth in the Subscription Order.

EXHIBIT A – APPLICATIONS AND SERVICES

Subject to the terms and conditions of this Subscription Agreement, the “Applications and Services” that may be provided under this Subscription Agreement include the following:

  • SupraMed-PM, which is a cloud-based practice management software package.
  • SupraMed-Complete, which is a cloud based practice management, electronic health recordkeeping, and online insurance billing software package.

Technical Support Services: SupraMed’s support obligation is limited to the functionality of the Software. Customer can receive technical support by telephoning SupraMed’s office located in California at 855-478-7726 or emailing support@supramed.com 24 hours a day,  7 days a week, any day of the year. SupraMed may choose, in its sole discretion, the method by which SupraMed provides support services. Support services do not include: (a) resolution of problems resulting from: (i) any modification of, or damage to the local Customer operating environment, (ii) Customer’s failure to operate the Software in the recommended network, hardware and software environment, or (iii) Customer’s failure to operate the Software in accordance with SupraMed documentation and/or instructions; (b) new modules in the Software for which SupraMed establishes a separate license fee; (c) installation, maintenance, support, repair or training regarding computer hardware, networks, operating systems or software of any other vendor. Customer shall cooperate with SupraMed in identifying the cause of any claimed failure of the Software to perform in accordance with its documentation and report any errors in the Software to SupraMed and allow SupraMed remote and on-site access to their network for the purpose of performing support services and verifying system performance.

Service Levels.

1. Definitions. The following capitalized terms shall have the following meanings in this Exhibit A.

(a) “Service Availability” is defined as the percentage of time during each calendar month that the Applications and Services are available. Service Availability is calculated as follows:

(Total minutes in month (less Excluded Events) – Total Unavailable minutes in month (less Excluded Events)) / Total minutes in a month (less Excluded Events) * 100

(b) “Unavailable” or “Unavailability” of the Applications and Services means that Customer is unable to access the Applications and Services other than as a result of an Excluded Event for more than 5 consecutive minutes. Intermittent outage for a period of less than five (5) minutes will not be counted towards any Unavailability periods.

(c) “Excluded Events” means (i) normal scheduled maintenance to the Applications and Services; (ii) outages due to any malfunction or failure of Customer’s connectivity to the Applications and Services, Customer’s incorrect input of log-in information, or other network outages, such as outages attributable to Customer’s Internet Service Provider; and (iii) incidents of force majeure as set forth in Section 10 of the Standard Terms and Conditions.

2. Service Level Commitment.

 Description  Service Level Commitment
 Service Availability  [99.9%]

3. Service Level Credits. 

In the event that the Service Levels fall short of the Service Level Commitment in any calendar month, Customer shall be entitled to receive the following service level credits (the “Service Level Credits”), subject to the terms and conditions set forth in this Exhibit E:

  • Credit equal to 1% of the Software Subscription Fee for every hour or fraction thereof that the Service Levels fall short of the Service Level Commitment in any calendar month, up to a maximum aggregate amount of 25% for the calendar month in which the Service Level Commitment is not achieved.

In the event that SupraMed does not meet the Service Level Commitment for any month, Customer may submit a written request for a Service Level Credit from SupraMed prior to the end of the calendar month directly following the calendar month in which such Service Level Credit was earned. SupraMed will review Customer’ request for a Service Level Credit and calculate any applicable Service Level Credits payable to Customer. Any Service Level Credits shall be credited against the monthly Subscription Fee for the second month after the month in which such Service Level Credit was requested. For purposes of illustration, if a Service Level Credit is earned during the month of January, Customer shall use reasonable efforts to request such Service Level Credit prior to the end of February and once validated by SupraMed, such Service Level Credit shall be applied to Customer’s monthly Subscription Fee for the month of April.

4. Sole and Exclusive Remedy.

Customer acknowledges and agrees that the Service Level Credits set forth in Section 3 above constitute Customer’s sole and exclusive remedy for any failure of SupraMed to meet the Service Level Commitment.

EXHIBIT B – MINIMUM HARDWARE AND SOFTWARE REQUIREMENTS

The following information outlines the minimum hardware and software requirements necessary for using SupraMed’s web-enabled products, to be provided by Customer at its expense. This information is to be used as a guide only, as specific hardware requirements may vary. SupraMed will provide review of, and recommendations regarding, specific system configurations during the implementation process.

1. Hardware Requirements

PCs – Intel Core i5 processor or better
Mac – Intel Core i5 processor or better
iPad – iPad 2 and above
iPhone – iPhone 4 and above

Optional:
USB credit card reader for integrated payment processing
High-speed scanner for document storage

2. Software Requirements

Operating System:
Windows 7 or higher
Mac OS 9 or higher

Internet Browser:
Internet Explorer – version 9 or higher
Chrome – version 33 or higher
Safari – version 6 or higher

3. Internet Connectivity Requirements

High speed Internet connection (3Mbs or better)
T1 recommended for Speech to Text option

EXHIBIT C – TRAINING

Training: Customer is entitled to unlimited access to Company’s online training materials and will receive and up to four (4) hours of remote training at no charge. Customer can request additional training at any time. Additional training will be charged according to SupraMed’s standard rates, which will be provided upon request. All training is limited to the SupraMed Applications and Services. SupraMed will not be responsible for training on hardware, networks, operating systems, or software other than SupraMed Applications and Services.

Reimbursable expenses: Customer shall be responsible for reasonable expenses incurred by SupraMed in its performance of on-site training including, without limitation, travel expenses.

EXHIBIT D – BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (“BA Agreement”) is entered into by and between Customer and SupraMed to set forth the terms and conditions under which “protected health information,” as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and regulations enacted thereunder, limited to that protected health information created for or received from or on behalf of Customer by SupraMed(“Protected Health Information” or “PHI”) may be used or disclosed. Capitalized terms used in this BA Agreement and not otherwise defined herein or in the Subscription Agreement shall have the meanings set forth in HIPAA, which definitions are hereby incorporated by reference.

This BA Agreement shall commence on the Effective Date of the Subscription Agreement and the obligations herein shall continue in effect so long as SupraMed uses, discloses, creates or otherwise possesses any PHI and until all PHI is destroyed or returned to Customer pursuant to Paragraph 13 herein.

1. Customer and SupraMed hereby agree that SupraMed shall be permitted to use and/or disclose PHI for the sole purpose of delivering the Applications and Services in accordance with the Subscription Agreement.

2. SupraMed may use and disclose PHI for the proper management and administration of SupraMed or to carry out SupraMed’s legal responsibilities, provided that any disclosure is (a) required by law, or (b) SupraMed obtains reasonable assurances from the person to whom the PHI is disclosed that (i) the PHI will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person; and (ii) SupraMed will be notified of any instances of which the person is aware in which the confidentiality of the PHI is breached.

3. To the extent SupraMed is to carry out any obligation of Customer under Subpart E of 45 CFR 164, SupraMed hereby agrees to comply with the requirements of Subpart E of 45 CFR 164 that apply to Customer in the performance of such obligation.

4. SupraMed further agrees not to use or disclose PHI except as expressly permitted or required by this BA Agreement, the Subscription Agreement, applicable law, or for the purpose of managing SupraMed’s own internal business processes consistent with Section 2.

5. SupraMed shall not disclose PHI to any agent or subcontractor of SupraMed until such person agrees in writing to be bound by the same or substantially similar restrictions and conditions that apply through this BA Agreement to SupraMed with respect to such PHI.

6. SupraMed agrees to use appropriate safeguards and comply, where applicable, with subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI not permitted by this Subscription Agreement or applicable law.

7. SupraMed agrees to maintain a record of all disclosures of PHI, as would be required for Customer to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 CFR §164.528. Such record shall include the date of the disclosure, the name and, if known, the address of the recipient of the PHI, the name of the individual who is the subject of the PHI, a brief description of the PHI disclosed, and the purpose of the disclosure. SupraMed shall make such record available to an individual who is the subject of such information or Customer and shall include disclosures made on or after the date which is six (6) years prior to the request.

8. SupraMed agrees to report to Customer any unauthorized use or disclosure of PHI by SupraMed of which it becomes aware, including security incidents and breaches of unsecured PHI as required under 45 CFR §164.410.

9. SupraMed agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the United States Department of Health and Human Services, for purposes of determining the Customer’s compliance with HIPAA.

10. To the extent that SupraMed has PHI in a Designated Record Set, SupraMed shall allow a person who is the subject of PHI, such person’s legal representative, or Customer to have access to and to copy such person’s PHI maintained by SupraMed as necessary for Customer to meet Customer’s requirements under 45 CFR §164.524.

11. To the extent that SupraMed has PHI in a Designated Record Set, SupraMed agrees to make available for amendment and to amend PHI at the request of Customer, pursuant to 45 CFR §164.526.

12. Either party may terminate this BA Agreement if it determines that the other party has breached a material term of this BA Agreement. A party may exercise its right to terminate this BA Agreement by providing the other party thirty (30) calendar days’ written notice of termination, stating the breach of this BA Agreement that provides the basis for the termination and affording the other party an opportunity to cure said alleged material breach within thirty (30) days. Any termination pursuant to this Section 12 will be effective immediately upon the expiration of such thirty (30) day period or at such other date specified in the notice of termination and shall terminate the Subscription Agreement, unless expressly agreed otherwise by the parties. Each party’s remedies under this BA Agreement are cumulative, and the exercise of any remedy shall not preclude the exercise of any other.

13. Upon termination of this BA Agreement, SupraMed shall return or destroy all PHI that SupraMed maintains in any form, and shall retain no copies of such information. Or, if the return or destruction of PHI is not feasible, SupraMed shall continue to maintain the security and privacy of such PHI in a manner consistent with the obligations of this BA Agreement and as required by applicable law, and shall limit further use and disclosure of the PHI to those purposes that make the return or destruction of the PHI infeasible. The duties hereunder to maintain the security and privacy of PHI shall survive the discontinuance of this BA Agreement for so long as SupraMed retains any PHI.

14. The parties agree to take such action as is necessary to amend this BA Agreement from time to time as necessary for SupraMed and Customer to comply with the requirements of HIPAA.

EXHIBIT E – STANDARD TERMS AND CONDITIONS

1. INTRODUCTION AND GENERAL PROVISIONS. These Standard Terms and Conditions set forth the general terms and conditions upon which SupraMed will provide the Applications and Services to Customer.

2. DEFINITIONS. The following definitions govern the meaning of these capitalized terms used in the Subscription Agreement:

2.1. “Fees” means the fees described on a Subscription Order.

2.2. “Insolvency Proceedings” means, with respect to either party, the commencement of bankruptcy, insolvency, reorganization or liquidation proceedings or other similar proceedings for relief under any bankruptcy law or any law for the relief of debtors instituted by or against such party and, if instituted against it, if such proceedings are not dismissed within thirty (30) days after such commencement.

2.3. “Proprietary Information” means, for each party to the Subscription Agreement, all code, data, inventions, algorithms, know-how and ideas and all other business, technical and financial information disclosed by such party to the other party.

2.4. “Software” is defined on Exhibit A.

2.5. “Taxes” means any and all foreign, federal, state and local taxes, excises, duties and assessments (including, without limitation, sales, use, personal property, gross receipts and excise taxes, together with any penalties, fines or interest) that may be associated with the performance of the Subscription Agreement (including, without limitation, making available or performing the Applications and Services), other than any taxes based upon SupraMed’s income.

2.6. “SupraMed Technology” means SupraMed’s proprietary technology for the delivery of Applications and Services, including, without limitation, the Internet operations design, content, software tools, hardware designs, algorithms, Software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any other intellectual property rights related to any of the foregoing (whether owned by SupraMed or licensed to SupraMed from a third party), in each case embodied in, utilized in or otherwise related the Applications and Services, including, without limitation, any derivatives, improvements, enhancements or extensions thereof conceived, reduced to practice, or developed during the Term by SupraMed or Customer.

3. LICENSE; PAYMENT TERMS; TAXES.

3.1. License.

(a) Software. From the Effective Date through the remainder of the Term and subject to the terms and conditions of this Subscription Agreement, SupraMed grants to Customer a non-exclusive, non-transferable license to access and use the Applications and Services solely for Customer’s internal business purposes.

(b) CPT. In connection with using the Application and Services, Customer may receive access to the official Current Procedural Terminology (CPT®) codes (“CPT”) which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Medical Association (the “AMA”), AMA Plaza, 330 N. Wabash Ave., Suite 39300, Chicago, IL, 60611-5885. SupraMed provides CPT to Customer under a sublicense from the AMA, whereby Customer shall have the non-exclusive, non-transferable license during the Term and subject to the terms and conditions of this Subscription Agreement, to use CPT solely for Customer’s internal business purposes. Customer acknowledges that fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT, and the AMA is not recommending their use, that the AMA does not directly or indirectly practice medicine or dispense medical services, and that the AMA assumes no liability for data contained or not contained herein. CPT is copyright 2013 the American Medical Association, all rights reserved. CPT is a registered trademark of the American Medical Association. Customer is prohibited from publishing, distributing via the Internet or other public computer based information system, creating derivative works (including translating), transferring, selling, leasing, licensing or otherwise making available to any unauthorized party CPT, or a copy or portion of CPT. Customer shall ensure that anyone with authorized access to the Applications and Services will comply with the provisions of this Subscription Agreement as it concerns CPT. Customer acknowledges that provision of updated CPT in connection with Applications and Services is dependent on continuing contractual relationship between SupraMed and the AMA. Customer may only make copies of CPT for back up or archival purposes. All notices of proprietary rights, including trademark and copyright notices, must appear on all permitted back up or archival copies made. U.S. government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer database and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14(December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.

3.2. Payment Terms.  Monthly: Except with respect to the Implementation Fees and the first month’s Subscription Fees, which are due and payable upon the execution of this Subscription Agreement, Customer shall pay to SupraMed the Subscription Fees for each upcoming month through electronic funds transfer and/or Automated Clearing House. Should Customer not authorize such payment, SupraMed shall invoice Customer for the Fees at least ten (10) days in advance of each month during the Term. All monthly invoices are payable on or before the first day of the applicable anniversary month for which the invoiced Applications and Services are to be provided. Annual: SupraMed shall invoice Customer for the annual Subscription Fees on the Effective Date, and each anniversary thereafter.  For the Initial Term, the first month’s Subscription Fees, which are due and payable upon the execution of this Subscription Agreement, shall be credited to Customer.  All annual invoices are due and payable within thirty (30) days. If any invoice, monthly or annual,  is not paid within the above terms, SupraMed will send a collection notice to Customer requesting payment. If payment is not received within five (5) business days of the collection notice, SupraMed may, at its sole discretion, discontinue performing or making the Applications and Services available. Without limiting SupraMed’s rights to terminate this Subscription Agreement, the Applications and Services will be performed or made available again only on full payment of all outstanding invoices. Balances on all outstanding invoices will be subject to a late payment charge at an annual rate equal to the lesser of eight percent (8%) or the maximum rate permitted by applicable law.

3.3. Taxes. All Fees are exclusive of any Taxes, all of which Customer agrees to pay. Customer will immediately reimburse and indemnify SupraMed to the extent SupraMed pays or bears the liability for any Tax (with the amount of such Tax, and a description with respect thereto, being separately stated on SupraMed’s invoice). If Customer is exempt from the payment of any Tax, upon execution of the Subscription Agreement, Customer shall provide SupraMed with a valid Tax exemption certificate authorized by the appropriate taxing authority.

4. LIMITED WARRANTIES AND COVENANTS.

4.1. Power. Each party warrants to the other party that it has all necessary power to perform its obligations under the Subscription Agreement.

4.2. No Conflict. Each party warrants to the other party that execution and performance of the Subscription Agreement will not breach any law, regulation, judgment or agreement to which it is subject.

4.3. Records; Compliance. Customer represents, warrants and covenants to SupraMed that Customer has all necessary authority to provide the records and/or data to be processed pursuant to the Subscription Agreement to SupraMed for processing in accordance with the terms of the Subscription Agreement and that the provision of such records and/or data pursuant to the Subscription Agreement will not violate any applicable law, rule, regulation, contract term or other obligation of Customer, or otherwise violate the rights of any third party.

4.4 Applications and Services. SupraMed represents, warrants, and covenants that the service components of the Applications and Services will be provided in a professional and workmanlike manner. Subscriber’s sole and exclusive remedy for a breach of this Section 4.4 is for SupraMed to re-perform any non-conforming services.

4.5. HIPAA. Customer agrees to operate its business in a manner consistent with the Health Insurance Portability and Accountability Act (“HIPAA”) in effect from time to time, or any successor statute thereto, and any regulations promulgated pursuant thereto. As prescribed in HIPAA, each party agrees to execute a “Business Associate Agreement” in the form set forth in Exhibit D prior to conveyance of confidential protected health information, as defined by HIPAA regulations.

4.6 Warranty Disclaimers. SUPRAMED DOES NOT WARRANT THAT THE APPLICATIONS AND SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, THAT THE USE OR OPERATION OF THE APPLICATIONS AND SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. SUPRAMED EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OR INABILITY TO USE THE APPLICATIONS AND SERVICES. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SUPRAMED IS NOT PROVIDING AND SHALL HAVE NO LIABILITY WHATSOEVER REGARDING ANY DATA OR OTHER CONTENT THAT IS ENTERED INTO CUSTOMER’S SYSTEM AND PROCESSED BY THE SOFTWARE OR OTHERWISE USED IN CONNECTION WITH THE APPLICATIONS AND SERVICES BY CUSTOMER, AND THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO ANY SUCH DATA INCLUDING, WITHOUT LIMITATION, THE ACCURACY THEREOF OR THE CREDENTIALS CLAIMED BY ANY USER OR OTHER THIRD PARTY USING THE APPLICATIONS AND SERVICES. THE SUPRAMED APPLICATIONS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SUPRAMED MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE APPLICATIONS AND SERVICES. SUPRAMED SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS SUBSCRIPTION AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CPT AS CONTAINED IN THE APPLICATIONS AND SERVICES IS PROVIDED “AS IS” WITHOUT ANY LIABILITY TO SUPRAMED OR THE AMA, INCLUDING WITHOUT LIMITATION, NO LIABILITY FOR CONSEQUENTIAL OR SPECIAL DAMAGES, OR LOST PROFITS FOR SEQUENCE, ACCURACY, OR COMPLETENESS OF DATA, AND WITHOUT ANY GUARANTEE FROM SUPRAMED OR THE AMA THAT CPT WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT AMA’S SOLE RESPONSIBILITY IS TO MAKE AVAILABLE TO SUPRAMED REPLACEMENT COPIES OF CPT IF THE DATA IS NOT INTACT; AND THAT THE AMA DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE, OR INTERPRETATION OF INFORMATION CONTAINED OR NOT CONTAINED IN CPT.

5. OWNERSHIP.

As between the parties, SupraMed is the sole owner of the SupraMed Technology and any and all intellectual property or other proprietary rights related to the SupraMed Technology, as well as all copies and portions thereof, whether or not incorporated into or with other technology. Customer warrants and agrees (i) not to modify, alter or otherwise create any derivative work based on the SupraMed Technology; (ii) not to reproduce any SupraMed Technology or any component thereof except as necessary for the permitted use under the license set forth in Section 3.1; (iii) not to reverse assemble, reverse engineer or decompile or, if applicable, derive source code (or the underlying ideas, algorithms, structure or organization) or other trade secrets from the SupraMed Technology, or attempt to do any of the foregoing; (iv) not to offer the SupraMed Technology to or make the SupraMed Technology available to any third party whether as a service bureau, application service provider or otherwise; and (v) not to access the SupraMed Technology to (a) build a competitive product or service, (b) reproduce any features, functions or graphics of the SupraMed Technology, (c) resell the SupraMed Technology or (d) monitor its availability, performance or functionality, or for any other benchmarking or competitive purposes.

6. REMEDIES.

6.1. Dispute Resolution. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to the Subscription Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to the Subscription Agreement, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). There will be three (3) arbitrators (the “Arbitration Tribunal”), the first of which will be appointed by the claimant in its notice of arbitration, the second of which will be appointed by the respondent within thirty (30) days of the appointment of the first arbitrator and the third of which will be jointly appointed by the party-appointed arbitrators within thirty (30) days thereafter. The language of the arbitration shall be English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration Tribunal and the AAA. This Subscription Agreement will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in San Diego, California, USA. Notwithstanding the foregoing, claims being made for preliminary injunctive relief, other pre-judgment or equitable remedies (e.g., pursuant to Section 7), and claims for Customer’s failure to pay for Services in accordance with this Subscription Agreement may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.

6.2. Fees and Costs. In any legal action under the Subscription Agreement, the prevailing party shall be entitled to recover, in addition to its damages (subject to limitations stated elsewhere in the Subscription Agreement), its reasonable attorneys’ fees, expert witness fees, and other ordinary and necessary costs of arbitration or litigation, as determined by the Arbitration Tribunal or a court of competent jurisdiction. Such costs include, without limitation, costs of any legal proceedings brought to enforce a judgment or decree.

7. PROPRIETARY AND CONFIDENTIAL INFORMATION; CUSTOMER DATA.

7.1. Non-Disclosure. The receiving party agrees (i) to hold the disclosing party’s Proprietary Information in confidence and to take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the receiving party employs with respect to its confidential information of similar nature), (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third party and (iii) not to make any use whatsoever at any time of such Proprietary Information other than to the extent required to perform such party’s obligations under this Subscription Agreement. However, if Customer chooses to provide SupraMed any feedback or recommendations regarding the Applications and Services, Customer hereby permits SupraMed to use such feedback or recommendations without restriction. Each party agrees not to disclose the existence or terms of this Subscription Agreement to any third party without the written consent of the other party; except that SupraMed shall be entitled to disclose the existence of this Subscription Agreement and its terms to actual or potential investors or acquirers in connection with any due diligence investigation of SupraMed, and to its accountants, attorneys and other professional advisors; in each case on a need-to-know basis and provided that any such investor acquirer or advisor is bound by confidentiality obligations at least as restrictive as those set forth herein.

7.2. Exceptions. The receiving party shall not be obligated under this Section 7 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.

7.3 Customer Data. As between SupraMed and Customer, Customer shall retain full ownership rights to the data submitted by Customer as input in connection with Customer’s use of the Applications and Services (“Customer Data”). The accuracy and adequacy of Customer Data shall be the exclusive responsibility of Customer. Customer acknowledges and agrees that SupraMed (i) is not responsible for, and has had no involvement or participation in, the gathering, preparation or development of the back-up documentation which substantiates or evidences the Customer Data; and (ii) is not responsible for validating, verifying or determining the accuracy of the Customer Data or detecting or correcting prior errors with regard to the Customer Data.

7.4. Records Analysis. Notwithstanding any other provision in the Subscription Agreement to the contrary, Customer agrees that SupraMed may use Customer for non-patient specific statistical analysis. SupraMed agrees that the analysis will not disclose to any other organization or entity (i) individually identifiable health information (as described by HIPAA regulations), or (ii) the identity of any patient, provider or payer, or (iii) that Customer is the source of such data. SupraMed may use this information without restriction for any purpose including the development and/or marketing of a benchmarking database to compare healthcare utilization patterns and for promotional purposes. Such information may contain generic demographic data regarding patients, providers, claim, and utilization data. All information compiled by SupraMed pursuant to this Section 7.4 shall be deemed to be owned by SupraMed for all purposes.

8. LIMITATION OF REMEDIES AND RESPONSIBILITIES.

8.1. Limited Remedy. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE SUBSCRIPTION AGREEMENT TO THE CONTRARY, EXCEPT FOR LIABILITY FOR BREACH OF SECTION 7 OR LIABILITY UNDER SECTION 9, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE SUBSCRIPTION AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST DATA. THE REMEDY FOR SUPRAMED’S BREACH OF ANY PROVISION OF THE SUBSCRIPTION AGREEMENT SHALL BE LIMITED TO THE PERFORMANCE BY SUPRAMED OF REPLACEMENT SERVICES. IN THE EVENT THAT SUCH BREACH CANNOT BE REMEDIED BY THE PERFORMANCE OF REPLACEMENT SERVICES BY SUPRAMED, OR WHERE SUCH PERFORMANCE IS INAPPLICABLE, SUPRAMED SHALL BE LIABLE ONLY FOR DIRECT DAMAGES. IN ALL INSTANCES HEREUNDER, THE AGGREGATE MAXIMUM AMOUNT OF LIABILITY FOR SUPRAMED FOR ALL CLAIMS THAT ARISE UNDER OR RELATE TO THE SUBSCRIPTION AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID TO SUPRAMED BY CUSTOMER UNDER THE SUBSCRIPTION AGREEMENT DURING THE THEN MOST RECENT TWELVE-MONTH PERIOD. IN NO EVENT SHALL SUPRAMED BE LIABLE FOR CLAIMS CAUSED BY MODIFICATIONS OR ADAPTATIONS TO THE APPLICATIONS AND SERVICES BY ANYONE OTHER THAN SUPRAMED.

8.2 No Substitute for Professional Judgment. Notwithstanding anything to the contrary contained herein, Customer acknowledges that the Applications and Services are not intended as a substitute for professional medical judgment and SupraMed shall have no indemnification obligations or other liability related to any failure to exercise such professional judgment. In the event that the Applications and Services or any report or information generated by the Applications and Services is used in connection with any diagnosis or treatment by Customer and/or any of Customer’s patients, Customer agrees to accept all responsibilities 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 relates to Customer’s use of the Applications and Services.

9. INDEMNITY.

9.1. Mutual Indemnity. Each party will indemnify (the “Indemnifying Party”), defend and hold the other (the “Indemnified Party”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against the Indemnified Party or its affiliates which resulted from any willful misconduct by the Indemnifying Party.

9.2. SupraMed Infringement Indemnity. SupraMed will indemnify, defend and hold harmless Customer from and against any and all Losses arising out of any Action brought by any third party against Customer to the extent it arises from the infringement or misappropriation of any intellectual property right of such third party by the provision of the Applications and Services (but excluding any infringement to the extent contributorily or otherwise caused by Customer). The foregoing provisions of this Section 9.2 state the entire liability of SupraMed, and the sole remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights. SupraMed will have no liability for any claim: (i) based upon the combination, operation or use of the Applications and Services with hardware or software not supplied, approved, or otherwise contemplated by SupraMed; or (ii) based upon alteration or modification of the Applications and Services requested by Customer. If SupraMed becomes aware of a bona fide claim relating to an infringement or misappropriation of an intellectual property right relating to the provision of the Applications and Services, SupraMed, may, at its option, (i) obtain for Customer on commercially reasonable terms (determined in SupraMed’s discretion) the right to continue using the Applications and Services, (ii) replace or modify the Applications and Services so that they become non-infringing while giving equivalent performance to Customer (determined in SupraMed’s discretion) or (iii) terminate the Subscription Agreement.

9.3. Customer Indemnity. Customer will indemnify, defend and hold harmless SupraMed from and against any and all Losses arising out of any Action brought by any third party against SupraMed which results from the breach or alleged breach by Customer of the representations, warranties of convents herein or the use by or on behalf of Customer of the Applications and Services or any report or information generated by the Applications and Services.

9.4. Indemnity Procedure. The following provisions apply to the indemnity protection set forth in this Section 9. Each Indemnifying Party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any Action or Loss; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the Indemnified Party to participate in the defense of any Action at its own expense and with counsel of its choice; and (iv) receiving full cooperation of the Indemnified Party in the defense thereof. Each Indemnifying Party’s liability to pay or reimburse amounts under this Section 9 shall be to the extent of such Indemnifying Party’s proportional fault. Neither Party shall have any obligation to pay or reimburse any amounts paid in connection with any settlement or compromise reached without its prior written consent, which shall not be unreasonably withheld or delayed.

10. FORCE MAJEURE.

Neither SupraMed nor Customer shall be responsible for any delay or failure of performance resulting from causes beyond its control and without its fault or negligence.

11. MISCELLANEOUS.

11.1. Assignment. Any assignment of this Subscription Agreement by SupraMed or Customer without the prior written consent of the other, except to a parent or subsidiary, or a subsidiary of its parent, or to a successor to all or substantially all of the assets or business to which the Subscription Agreement pertains, whether by acquisition, merger, consolidation, operation of law or otherwise, shall be void and unenforceable. Such consent shall not be unreasonably withheld. No assignment shall relieve the assignor of its obligations under the Subscription Agreement or affect any of those restrictions on the use of the Applications and Services set forth in the Subscription Agreement. Any assignment not in accordance with these provisions shall be null and void.

11.2. Severability. Any provision in the Subscription Agreement which is prohibited or unenforceable in any jurisdiction shall as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions or affecting the validity or enforceability of such provisions in any other jurisdiction.

11.3. Applicable Law. All questions concerning the Subscription Agreement, including the validity, interpretation, performance, termination or breach of this Subscription Agreement shall be governed by and decided in accordance with the laws of California (excluding laws and principles relating to the conflicts of law).

11.4. Independent Contractors. The parties are independent contractors and the Subscription Agreement shall not be construed to create any other relationship between the parties, as principal and agent, joint venturers or otherwise. No party is authorized to enter into agreements for or on behalf of the other, collect any obligation due or owed to any other party, accept service of process for any other party, or bind any other party in any manner whatever. In particular, and without limiting the generality of the foregoing, SupraMed assumes no obligation or responsibility for Customer’s business or operations.

11.5. Equitable Remedies. The parties agree that in the event of any breach or threatened breach of any provision of the Subscription Agreement concerning Proprietary Information or intellectual property rights (including, without limitation, SupraMed Technology), money damages would be an inadequate remedy. Accordingly, those provisions may be enforced by the preliminary or the permanent, mandatory or prohibitory injunction or other order of a court of competent jurisdiction.

11.6. Limitation Period. Except for any action by SupraMed for non-payment, neither party may bring an action, regardless of form, arising out of the Subscription Agreement more than one (1) year after the claim arose.

11.7. Survival. The following provisions of this Exhibit E will survive the completion of the Term and any expiration or termination of the Subscription Agreement: Sections 5, 6, 7, 8, 9 and 11.

 
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