Terms and Conditions

“Consulting Services” means general business consulting services and related Deliverables ordered by Customer pursuant to a Work Order, but not associated with the use of any Software or constituting Implementation Services.

“Deliverables” shall mean all work product to delivered to Customer by Intraprise pursuant to a Work Order associated with this Agreement and specifically identified as such therein. For the avoidance of doubt, Deliverables shall not include the Software or any customization thereof.

“Disabling Device” means any software, hardware or other technology, device or means used by Intraprise to disable Customer’s access to or use of the Subscription Services.

“Documentation” means any manuals or other materials that Intraprise provides to Customer which describe the functionality or requirements of the Subscription Services or any Deliverable.

“Harmful Code” means any software, hardware or other technology, device or means, the purpose or effect of which is to (a) permit unauthorized access to, or to disable, harm or impede the Subscription Services in any manner as intended by this Agreement. Harmful Code does not include any Disabling Device.

“Implementation Services” means all of the services and Deliverables ordered by Customer for the initiation of Subscription Services, all as set forth on a corresponding Work Order.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Intraprise Materials” means the Services, Software, Subscription Services, Documentation and any and all other information that is provided or used by Intraprise in connection with the Services or Subscription Services.

“Law” means any statute, law, ordinance, regulation or other requirement of any government or political subdivision, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance.

“Maintenance Services” means Intraprise’s provision of qualified technical representatives by telephone, email or other remote means to assist Customer with the operation of the Subscription Services.

“Services” means Consulting Services and Implementation Services.

“Software” means the remotely accessible Intraprise programs, services and functionality as more fully identified in the Software Schedule.

“Specifications” means the applicable published Intraprise functional specifications for a Deliverable or the Subscription Services, including all Documentation.

“Work Order” means one or more schedule(s), attached to this Agreement as Exhibit A, of Services to be provided to Customer.

2. Consulting Services.

2.1. Delivery; Limitations. Intraprise will provide the Consulting Services upon the payment of all applicable Fees as specified in a relevant Work Order. Consulting Services do not constitute legal advice or a substitute for legal or compliance. Intraprise will not be bound by any purchase order forms, terms or conditions of Customer and the Terms and Conditions of this Agreement supersede any such contradictory terms or documentation.

2.2. Change Orders. If either Party wishes to modify or amend a Work Order, such Party shall submit a Work Order change request (each a “Change Request”) describing the proposed change(s), the reason for the proposed change(s), and the anticipated impact the proposed change(s) will have on the Consulting Services. If mutually agreed, a written authorization will be executed by both Parties, and attached to the Work Order and included in Exhibit A.

3. Subscription Services.

3.1.  Access; Limitations. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement including the payment of Fees, during the Term, Intraprise shall use commercially reasonable efforts to provide access to the Software listed on the Software Schedule for remote electronic access and use by Customer (“Subscription Services”), which may optionally be provided in conjunction with Consulting Services. Consistent with the provision of Consulting Services, Subscription Services do not constitute clinical, forensic, medical, legal, financial, accounting, regulatory compliance, physical, property, building or other security advice or a substitute for legal or regulatory compliance.

3.2.  Changes. Intraprise reserves the right, in its sole discretion, to make any changes to the Subscription Services that it deems necessary or useful but shall give Customer commercially reasonable prior written notice of any such changes.

3.3.  Suspension or Termination of Services. Intraprise may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s or any other access to or use of all or any part of the Subscription Services, without incurring any resulting obligation or liability, if: (a) Intraprise receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Intraprise to do so; or (b) Intraprise believes, in its sole discretion, that: (i) Customer has failed to comply with, any material term of this Agreement, or accessed or used the Subscription Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement; (ii) Customer has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Intraprise’s rights or remedies, whether at law, in equity or under this Agreement.

4. Customer Restrictions.

4.1. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Subscription Services or Intraprise Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Subscription Services and the Intraprise Materials are and will remain with Intraprise.

4.2. Authorization Limitations and Restrictions. Customer shall not and shall not permit any other person or entity to, access or use the Subscription Services except as expressly permitted by this Agreement. Customer shall not: copy, modify or create derivative works or improvements of the Subscription Services; rent, sublicense or otherwise make available any Subscription Services to any other person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Subscription Services, in whole or in part; bypass or breach any security device or protection used by the Subscription Services or access or use the Subscription Services other than by Customer, input, upload, transmit or otherwise provide to or through the Subscription Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Subscription Services, in whole or in part; remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscription Services, including any copy thereof; access or use the Subscription Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law; access or use the Subscription Services for purposes of competitive analysis of the Subscription Services or, the development, provision or use of a competing software service or product or any other purpose that is to the Intraprise’s detriment or commercial disadvantage; or otherwise access or use the Subscription Services beyond the scope of the authorization granted under this Agreement.

5. Customer Systems. Customer shall at all times maintain its own systems for accessing the Subscription Services (“Customer Systems”). Intraprise has no responsibility for the continued operation of such Customer Systems, or access to the Subscription Services.

6. Implementation Services.

6.1.  Delivery of Services. Intraprise will provide the Implementation Services upon the payment of all applicable Fees as specified in a relevant Work Order. The description, charges, and other terms applicable to the individual Implementation Services are set forth in the applicable Work Order(s). Intraprise will not be bound by any purchase order forms of Customer.

6.2.  Evaluation and Acceptance. Customer shall have the obligation to evaluate and test all relevant Deliverables as provided by Intraprise. Intraprise shall provide all Deliverables to Customer for a period of thirty (30) days for Customer to review and test such Deliverables to determine whether they conform to the Specifications, Documentation and any standards, codes or other requirements (“Evaluation Criteria”). If the Deliverables meet or exceed the Evaluation Criteria, then Customer shall be obligated to accept the Deliverables and notify Intraprise, through its Customer Coordinators, of its acceptance in writing. If Customer fails to provide a notice of acceptance or written notice of a defect within the thirty (30) day evaluation period, then the applicable Deliverables shall be deemed accepted by Customer. If Customer reasonably determines that the Deliverables fail to comply in any material respect to the Evaluation Criteria, then Customer must notify Intraprise in writing of the same within the thirty (30) day evaluation period. Upon receipt of such notice, Intraprise shall thereafter correct any such identified defects at Intraprise’s sole expense. If during the performance of a Work Order, a Deliverable is rejected, in full or in part, as a result of a failure or defect in a previously accepted Deliverable, then the thirty (30) day evaluation period shall restart for such previously accepted Deliverable upon rejection of the most recently received Deliverable. Upon acceptance by Customer, all Deliverables shall be merged and become a part of the Software and/or Documentation as appropriate.

7. Service Level and Support.

7.1. Service Level. Subject to the terms and conditions of this Agreement, Intraprise will use commercially reasonable efforts to make the Subscription Services available for Customer’s use. Intraprise makes no other representation or warranty of any kind with respect to availability of the Subscription Services, the compatibility of the Subscription Services with any third party software or anything other than the hosting device operating systems and versions associated therewith.

7.2. Support. Subject to payment of all Fees, Intraprise will make the Maintenance Services available during its then-current normal business days. Customer will identify problems with the Subscription Services (each such report, a “Service Request”) as soon as practicable for entry into Intraprise’s support tracking system. Intraprise shall make commercially reasonable efforts to provide remediation identified in a Service Request in accordance with the Response Time, Effort Level, and Escalation Path (as defined in the Service Levels) guidelines for the applicable Severity Levels (as defined in the Service Levels) as identified in the chart provided at Section 16 (together, the “Service Levels”). Intraprise’s obligations with respect to Service Levels are contingent upon Customer: (i) devoting an appropriate level of effort to resolving the Error as is required of Intraprise, (ii) responding to requests made by Intraprise within the applicable Response Time (including the timely provision of access to the Software), and (iii) assigning its most qualified personnel to help Intraprise address the problem.

7.3. Exclusions. Intraprise shall have no obligation to Customer to the extent any Software is adversely affected by: use of the Subscription Services in combination with other software, equipment or communications networks that are not referenced in the Documentation or otherwise approved in writing by Intraprise; any modification to the Customer Systems or operating environment that is made other than by or at the direction of Intraprise, or with notification to Intraprise and appropriate testing; any modification to Customer’s data to the extent interoperable with the Subscription Services made without reasonable notice to Intraprise; viruses or other malware introduced through no fault of Intraprise; use of the Subscription Services other than as permitted by Intraprise; or Customer’s failure to perform Customer responsibilities in accordance with this Agreement.

7.4. Data Backup. Intraprise will exert commercially reasonable efforts to maintain any information, data and other content that is collected, uploaded or otherwise received for Customer through the use of the Services (“Customer Data”) hosted by Intraprise pursuant to the Subscription Services. EXCEPT AS MAY BE CAUSED BY INTRAPRISE’S NEGLIGENCE OR WILFUL MISCONDUCT, OR PURSUANT TO ANY BUSINESS ASSOCIATE AGREEMENT, INTRAPRISE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

8. Fees; Payment Terms.

8.1. Fees. Customer shall pay Intraprise the fees set forth in a relevant Work Order with respect to Consulting Services and the Software Schedule with respect to Subscription Services (“Fees”). Fees are exclusive of reasonable expenses which will be charged to Customer for travel, lodging, meals and other out-of-pocket expenses under any Work Order. Any single expense of One Thousand Dollars ($1,000) or more shall require the prior approval by Customer. Each invoice rendered by Intraprise will include an invoice number, the time period covered by the invoice and sufficient detail and supporting documentation to allow Customer to determine the accuracy of the invoice.

8.2.  Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments.

8.3.  Payments. Customer shall make all payments hereunder in US dollars. Terms are Net 30 days unless otherwise set forth in a Work Order. Except as provided herein, Fees are non- refundable. For invoices not paid within the time identified on the invoice, in addition to other remedies to which Intraprise may be entitled, Intraprise may charge Customer a late fee of two (2%) percent per month or the statutory maximum, whichever is less, applied against overdue amounts. Customer shall also be responsible for collection costs associated with late payment, if any, including reasonable attorneys’ fees.

9. Intellectual Property Rights; Confidentiality and Data.

9.1.  Services and Intraprise Materials. All right, title and interest in and to the Subscription Services and Intraprise Materials, including all Intellectual Property Rights therein, are and will remain with Intraprise.

9.2.  Customer Data. As between Customer and Intraprise, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to or party responsible for all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.5.

9.3.  Personal Health Information Data. The parties acknowledge that during its use of the Services, Customer may be collecting and uploading information relating to patients which may include personally identifiable information (the “PHI Data”).

9.4.  Business Associate and use of PHI Data. Except as otherwise specifically provided in this Section 9, and further subject to the limitations of a relevant Business Associate Addendum (a “BAA”), to this Agreement, or any business associate agreement Intraprise may have with relevant third parties, Intraprise will not, other than as permitted herein, use for itself or make available for use by others any PHI Data. Further, to the extent Intraprise is permitted in accordance with this Section 9 to use or make any PHI Data available to third parties, it shall not use or make any such PHI Data (or other information) available which could, alone or in conjunction with any other information, lead to the identity of any patients (including, without limitation, with respect to such patients, any names, addresses, telephone numbers, Social Security numbers, or other identifiers specified in Section 164.514 of the HIPAA Privacy Rule and will keep all such information strictly confidential. Intraprise may de-identify individually identifiable health information (as defined in HIPAA) of patients contained in any Customer Data in accordance with the de-identification standards set forth in HIPAA that is received from or received or created on behalf of Customer or a relevant Associate. Such de-identified PHI Data pertaining to individually identifiable health information of any patient is hereinafter collectively referred to as “De-identified Data.” During and following the Term, Intraprise will not, directly or indirectly, make any attempt to re-identify any De-identified Data and will not disclose any De-identified Data to any third party in a manner that could allow such third party to re-identify any De-identified Data, or to identify any End User Patient. In furtherance of the foregoing, Intraprise will not directly or indirectly provide any key or other methodology that would allow such identification or re- identification contemplated above. Intraprise may internally use the De-identified Data for the purpose of compiling aggregate outcome and/or benchmarking profiles for product development or for sale, license or other disclosure ot third parties.

9.5. Consent to Use Customer Data. Customer represents that it has the appropriate authorization to obtain all Customer Data and to transmit the same to Intraprise. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to Intraprise as necessary or useful to perform the Services; and as are necessary or useful to enforce this Agreement and exercise and perform its rights and obligations hereunder.

9.6. Publicity Rights. Each party may issue a press release following the execution of this Agreement and each party hereby consents to the other party’s use of its name, URL and logo on its website and in any marketing materials identifying the relationship represented by this Agreement.

9.7. Non-Solicitation. During the Term, and for a period of one (1) year thereafter, neither Party will , without the other Party’s prior written consent, directly or indirectly, as an owner, principal, partner, member, shareholder, independent contractor, consultant, joint venture, investor, licensor, lend, employee or in any other capacity whatsoever, alone, or in association with any other person: (i) induce, solicit, recruit or attempt to induce, solicit or recruit any employee or contractor of the other Party or its affiliates to terminate employment with, or cease providing services to, the other Party or its affiliates; or (ii) solicit, attempt to do any business with, refer or intentionally interfere with the other Party’s relationship with any advertiser, customer, developer, distributor, licensor, licensee, partner, reseller, or supplier of or to the other Party. This restriction shall not apply to the extent that the sole contact with the other Party’s employee or contractor has been their response to a broadly publicized job posting or announcement.

9.8. Non-Disparagement. The Parties agree to refrain at all times after the Effective Date hereof from, directly or indirectly, making any oral or written statements of a disparaging, defamatory, false or otherwise materially misrepresentative nature to any person or entity about or relating to the other Party (including its related and affiliated companies) and each of their past, present and future directors, partners, officers, employees, attorneys, owners or agents. Nothing in this Agreement is intended to or shall be interpreted to restrict each Party’s right and/or obligation: (i) to testify truthfully in any forum and/or (ii) to contact, cooperate with or provide information to any government agency or commission.

10. Term and Termination.

10.1.  Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect as set forth in the Software Schedule or a relevant Work Order (the “Term”). To the extent no Term is defined, the term shall be one (1) year. This Agreement shall automatically renew after the initial Term for additional one (1) year terms (collectively included in the Term) unless either Party provides written notification of its intent not to renew sixty (60) days or more before the expiration of the then-current Term. Notwithstanding the foregoing, in no event will a party’s notice of non-renewal result in a termination of this Agreement if any Work Order is in progress, and the effective date of termination for such Work Order and this Agreement shall be the date upon which the Services under such Work Order have been completed and payment in full for all Work Orders has been received by Intraprise.

10.2.  Termination. If either Party breaches a material provision of this Agreement or any specific Work Order and fails to remedy such material breach within thirty (30) days after receiving written notice of that breach from the other Party, the non- breaching Party may, at its option, terminate this Agreement, including all outstanding Work Orders, or the specific Work Order to which such breach relates.

10.3.  Nonpayment. Without limiting the foregoing, in the event Customer fails to meet any Fee payment obligation, Intraprise Health may terminate this Agreement, effective on written notice to Customer.

10.4.  Insolvency. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.5.  Refund of Fees Upon Termination. If Intraprise terminates this Agreement for cause Customer remains liable for all unpaid Fees that are payable for the entire Term and no refund of prepaid Fees shall be allowed to Customer.

10.6.  Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate. Customer shall immediately cease all use of any Services or Intraprise Materials and (i) return to Intraprise, or at Intraprise’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Intraprise Materials or Intraprise’s Confidential Information; and (ii) permanently erase all Intraprise Materials and Intraprise’s Confidential Information from all systems Customer directly controls. Intraprise may disable all Customer access to the Services and Intraprise Materials.

11. Representations and Warranties.

11.1.  Mutual Representations and Warranties. Each party represents and warrants to the other party that: it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

11.2.  Additional Intraprise Representations and Warranties. Intraprise represents and warrants: (i) that the Services will be performed substantially in accordance with the Intraprise Materials; (ii) when used by Customer in accordance with this Agreement, no Services or Deliverables as delivered by Intraprise does or will: infringe, misappropriate or otherwise violate any United States intellectual property right of any third party; (iii) it has not been convicted of a criminal offense related to health care; (iv) it is not currently listed by a federal or state agency as debarred, excluded or otherwise ineligible for participation in federally or state funded health care programs; (v) it is approved by HITRUST as a CSF Assessor for performing assessment and services associated with the CSF Assurance Program and the HITRUST CSF. Intraprise further agrees that it will promptly notify Customer in the event that it, or to Intraprise’s knowledge, any person in its employ who provides services hereunder, has been excluded, debarred, or has otherwise become ineligible for participation in any federal or state health care program, and in the event that Intraprise becomes aware that any employees, contractors and/or agents are subject to the actions set forth in the preceding sentence, then Intraprise shall promptly remove them from providing services hereunder. Intraprise agrees to continue to make reasonable inquiry regarding the status of its employees and independent contractors on a periodic basis, by reviewing the General Services Administration’s List of Parties Excluded from Federal Programs and the HHS/OIG List of Excluded Individuals/Entities.

11.3. Limitations on Infringement Warranty. The non-infringement warranty provided in Section 11.2(ii) shall not apply to the extent that non-compliance relates to or is the result of: (i) Customer’s use of the Subscription Services or any Deliverable in combination with changes to software, operating environment, equipment or communications networks not disclosed in advance to Intraprise; (ii) Customer’s failure to install any correction or enhancement provided by Intraprise, (iii) Harmful Code introduced through no fault of Intraprise; (v) any failure of third party hardware or software or other computer equipment components; or (vi) Customer’s use of the Subscription Services or any Deliverables not authorized by this Agreement. The warranty provided in this Section is valid only if Customer has complied with the terms of this Agreement (including paying the applicable Fees) and shall be void to the extent of any modification to the Subscription Services or Deliverables not authorized by Intraprise.

11.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, ALL SERVICES AND INTRAPRISE MATERIALS ARE PROVIDED “AS IS” AND INTRAPRISE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND INTRAPRISE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, , AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, INTRAPRISE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR INTRAPRISE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

12. Indemnification.

12.1. General Indemnity. Each Party will indemnify, defend, and hold harmless the other Party, its affiliates, subsidiaries, officers, directors, employees and agents from any and all Losses arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party for: (i) wrongful death of, bodily injury, or physical damage to tangible personal property to the extent caused by such Party’s negligence or intentional torts, or (ii) breach of any of a Party’s representations, warranties, covenants or obligations under this Agreement and will pay costs and damages awarded against the claiming Party with respect to any such claim that are specifically attributable to negligence or intentional torts or those costs and damages agreed to by a Party in a monetary settlement of such claim.

12.2. Customer’s Indemnification. In addition to the indemnifications in Section 12.1, Customer will defend Intraprise, its affiliates, subsidiaries, officers, directors, employees and agents from any Losses arising out of or relating to an Action, for or based upon use of Customer Data or any other materials or information provided solely by or on behalf of Customer.

12.3.  Intraprise Indemnification. In addition to the indemnifications in Section 12.1, Intraprise will defend Customer, its affiliates, subsidiaries, officers, directors, employees and agents from any Losses arising out of or relating to claims that: (i) that the Services or Intraprise Materials or Customer’s use of the Services or Intraprise Materials (excluding Customer Data) in compliance with this Agreement infringes a U.S. Intellectual Property Right; or (ii) unauthorized use of Customer Data in breach of Intraprise’s confidentiality obligations herein, to the extent caused by Intraprise’s negligence or intentional torts. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: access to or use of the Services or Intraprise Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Intraprise; modification of the Services or Intraprise Materials; or failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Intraprise.

12.4.  Limitations of Infringement Indemnity. In no event will Intraprise have any obligations under this Agreement or any liability for any claim or Action to the extent the claim or Action is caused by, or results from: (i) the combination or use of Services or Deliverables with non-Intraprise software, services, or data, if such claim or action would have been avoided by the non- combined or exclusive use of the Services or Deliverables; (ii) Customer’s modification of any Services or Deliverables if such claim or action would have been avoided by use of the unmodified Services or Deliverables; (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (iv) Customer’s use of the Services or Deliverables in a manner not materially in accordance with this Agreement or related documentation; (v) any modification of the Services or Deliverables in compliance with Customer’s specifications; or (vi) Customer’s use of the Services or other Deliverables in an application or environment for which such Software was not designed or contemplated.

12.5.  Right to Defend. As a condition to each Party’s indemnity obligations under this Agreement, the Party claiming indemnification will provide the indemnifying Party with prompt written notice of the claim, permit the indemnifying Party to control the defense or settlement of the claim, so long as the indemnifying Party does not admit fault on the part of the indemnified Party without the indemnified Party’s prior written approval, and provide the indemnifying Party with reasonable assistance in connection with such defense or settlement. The indemnified Party may employ counsel at its own expense to assist it with respect to any such claim.

12.6.  Mitigation. If any of the Services or Intraprise Materials are, or in Intraprise’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the Services or Intraprise Materials is enjoined or threatened to be enjoined, Intraprise may, at its option and sole cost and expense: obtain the right for Customer to continue to use the Services and Intraprise Materials as contemplated by this Agreement; modify or replace the Services and/or Intraprise Materials, in whole or in part, to avoid infringement and make the Services and/or Intraprise Materials (as so modified or replaced) non-infringing; or by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and/or Intraprise Materials.

THIS SECTION CONSTITUTES EACH PARTY’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST THE OTHER PARTY.

THIS SECTION SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND INTRAPRISE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND INTRAPRISE MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

13. Limitations of Liability.

OTHER THAN AS SET FORTH HEREIN, IN NO EVENT WILL INTRAPRISE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

OTHER THAN AS SET FORTH HEREIN, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE LICENSE FEES RECEIVED BY INTRAPRISE OR PAID BY SUBSCRIBER FOR THE PRECEEDING ONE YEAR PERIOD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATION DOES NOT APPLY TO INTRAPRISE’S INDEMNIFICAITON OBLIGATIONS HEREIN.

14. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15. Miscellaneous.

15.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

15.2. Entire Agreement. This Agreement and the Contract constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

15.3. Notices. All notices hereunder shall be in writing and shall be deemed given when sent by certified or registered mail, postage prepaid, return receipt requested or by facsimile or by email attachment; followed by delivery by courier, at the address set forth below for Intraprise and the address on the Signature Page for Customer. The addresses for such notices may be changed from time to time by written notice given in the manner provided for herein. The Interprise addresses for notices, as of the Agreement execution is:

Intraprise Health, LCC
12110 Sunset Hills Road
Suite 600
Reston, VA 20190
Attn: Legal

15.4. Assignment. Other than as part of a sale of substantially all of the assets of a party, neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other party’s prior written consent, which consent may be given or withheld in the party’s sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving either party (regardless of whether Customer or Intraprise is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which the other party’s prior written consent is required. No delegation or other transfer will relieve either party of any of its obligations or performance under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

15.5 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

15.6. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

15.7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in Pittsburgh, Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

15.8. Counterparts; Electronic Execution. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.