SaaS Master Services Agreement

By signing a Dignifi Health Software as a Service Purchase Order (the “Purchase Order”) that references this SAAS Master Services Agreement, or by accessing or using the Services, the Customer identified on the Purchase Order (the “Customer”) and Dignifi Health, Inc., a Delaware corporation (the “Provider”) agree to be bound by and be a party to this Services Agreement, unless otherwise expressly agreed to by Customer and Provider in the applicable Purchase Order through language that references this Services Agreement and communicates the parties’ intent to modify one or more specific provisions of this Services Agreement with respect to such Purchase Order. The Purchase Order and this SAAS Master Services Agreement shall herein be referred to as the “Agreement”.

1. Services

1.1 Services. The Purchase Order shall identify and define the specific “Services” selected by Customer and included under the Agreement, and any other services agreed to by the Parties. The leading services offered by Provider from which customers may select to access and use include:

• DignifiEngage. DignifiEngage is a population health decision support application that extracts and enhances Electronic Medical Record data to provide point-of-care insights for needed patient care. The service includes patient population risk stratification, payor mix, identification of patients with specific chronic diseases and pre-disease states, flagging of patient quality care gaps, advanced clinical reporting, and more.

• DignifiClaims. DignifiClaims aggregates and normalizes payor claims data feeds to offer advanced utilization insights and proprietary risk segmentation cohort analysis. Seamlessly integrating across the suite of DignifiHealth solutions, including DignifiEngage and Care Coordination, the service allows for direct personalized patient engagement to decrease high-cost, unnecessary healthcare utilization.

• Workflow Center. Workflow Center allows permissioned users the ability to access and download clinical, scheduling, and other preprocessed reports to support proactive, streamlined activities focused on delivering quality and value-based patient care.

• Performance Center. Performance Center allows permissioned users the ability to track and monitor patient- and provider- level progress against quality-based metrics.

• Care Coordination. The Care Coordination module is an application that supports enrollment, documentation, time tracking, and billing activities related to patient care coordination and case management programs, such as CMS Chronic Care Management.

• Supplemental Payor Data Feeds. Supplemental Payor Data Feeds are automated data feeds sent to one or more payors, designed to provide a more comprehensive view of patient health in order to improve documentation and coding accuracy, along with hierarchical condition category risk weighting. Supplemental Payor Data Feeds may include the automation of Optum’s In Office Assessment program (“Optum IOA Automation”), as applicable. Optum IOA Automation includes, upon initial setup, a one-time, year-to-date file submission to Optum, followed by monthly, charts-only package response submissions per Optum specifications. Supplemental Payor Data Feeds are subject to payor and plan participation.

• DignifiEdge. DignifiEdge is a proprietary, lightweight, single-file executable application typically placed in a Customer’s environment to enable secure data extraction and orchestration directly from an electronic medical record or enterprise data warehouse system without the need for an industry standard interface format. As a Service, DignifiEdge supplies Customer with normalized electronic medical record data for the purpose of supporting other Customer uses and applications.

1.2 Other Agreement Terms. The Purchase Order shall further identify and define the “Effective Date”; “Fees” associated with the Services; the “Initial Term” and any “Renewal Term”, which together constitute the “Term”, for purposes of the Agreement

2. Definitions.

In addition to terms defined in the Purchase Order and throughout the Agreement, the following terms shall have the definitions ascribed to them in this Section 2.

“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

“Authorized User” means the following natural persons who have been authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement, and for whom access to the Services has been purchased hereunder: (a) Customer’s employees, and (b) Customer’s consultants, contractors, and agents who are not competitors of Provider and who have entered into a non-disclosure agreement with Provider in form and substance acceptable to Provider in its sole discretion.

“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

“De-Identified Data” means health information which is not individually identifiable health information within the meaning of Section 164.514 of the HIPAA Privacy Rule (45 CFR 164.514).

“Documentation” means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof, as maybe modified and updated by Provider at any time and from time to time.

“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by the Agreement. Harmful Code does not include any Provider Disabling Device.

“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.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations in accordance with the Documentation, Specifications and terms of the Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically, with the passage of time or under the positive control of Provider or its designee.

“Provider Materials” means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, user and other interfaces and other content, devices, methods, processes, hardware, software, database tables and structures and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.

“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

“Resultant Data” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

“Specifications” means the specifications for the Services that the Provider provides or makes available to Customer in any form or medium, as may be modified and updated by Provider at any time and from time to time.

“Subcontractor” has the meaning set forth in Section 3.7.

“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.

3. Provision of Services.

3.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14.8) right to access and use the Services during the Term, solely for use by Authorized Users and solely for the Permitted Use. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date.

3.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.8) license to use the Documentation during the Term solely for the Permitted Use in connection with its use of the Services.

3.3 Service and System Control. Except as otherwise expressly provided in the Agreement, as between the parties:

(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and

(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.

3.4 Reservation of Rights. Nothing in the Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.

3.5 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under the Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties’ initial service managers are identified on the Purchase Order. Each party shall use reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.

3.6 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; (iii) the Services’ cost efficiency or performance; (iv) the features and functions of the Services; or (v) the Provider Systems, or (b) to comply with applicable Law.

3.7 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

3.8 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of the Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under the Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) the Agreement expires or is terminated. This Section 3.8 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under the Agreement.

4. Use Restrictions.

4.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by the Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as the Agreement expressly permits:

(a) copy, modify, or create derivative works or improvements of the Services or Provider Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;

(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party;

(g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials,;

(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;

(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage;

(j) access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or

(k) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under the Agreement.

5. Customer Obligations.

5.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with the Agreement. Provider shall not be responsible for any failure resulting from the Customer’s alteration of any of its electronic medical record data fields to which the Services are mapped. Provider may charge Customer at the Provider’s then current hourly rates for services performed in connection with any such alteration.

5.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement.

5.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 4.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

5.4 Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

6. Security.

6.1 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Non-public Personal Information, as defined by 12 CFR §1016.3(p)(1), subject to the Gramm-Leach-Bliley Act, and Personal Information of any person who is a domicile or resident of any jurisdiction outside of the United States of America, including without limitation “personal data” as defined in and subject to Regulation (EU) 2016/679 (General Data Protection Regulation); (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data; (e) access credentials (other than solely for the purpose of logging into the Service), (f) any data for which Customer has not obtained the necessary rights and consents so that the receipt, processing by Provider and exercise of Provider’s rights as permitted under and in accordance with the Agreement does not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights, of any third party or violate any applicable law (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems, or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

6.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.3 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

7. Fees and Payment.

7.1 Fees. Customer shall pay Provider the Fees set forth in the Purchase Order and in accordance with this Section 7.

7.2 Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

7.3 Payment. Customer shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefore. Customer shall make all payments hereunder in US dollars to the address or account provided at the time of invoicing, or such other address or account as Provider may specify in writing from time to time.

7.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

(a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;

(b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and

(c) if such failure continues for 5 days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

7.5 No Deductions or Setoffs. All amounts payable to Provider under the Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

7.6 Fee Increases. Provider may increase Fees no more than once annually for any contract year after the first contract year of the Initial Term, including any contract year of any Renewal Term, by providing at least 60 days advance written notice to Customer, and the Purchase Order will be deemed amended accordingly.

7.7 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider that have been pre-approved in writing by Customer in connection with performing the Services (“Reimbursable Expenses”).

8. Confidentiality.

8.1 Confidential Information. In connection with the Agreement each party (as “Disclosing Party”) may disclose or make available Confidential Information to the other party (as “Receiving Party”). Subject to Section 8.2, “Confidential Information” means information or material which is designated as confidential, trade secret or carries a similar designation by Disclosing Party or which Receiving Party knows or reasonably should know, is confidential to Disclosing Party. Notwithstanding anything to the contrary, all Provider Materials and the terms of the Agreement are the Confidential Information of Provider.

8.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by Receiving Party’s or any of its Representatives’ noncompliance with the Agreement; (c) was or is received by Receiving Party on a non-confidential basis from a third party that, to Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) Receiving Party can demonstrate by written or other documentary records was or is independently developed by Receiving Party without reference to or use of any Confidential Information.

8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, Receiving Party shall:

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Agreement;

(b) except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives in connection with the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; and

(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and

(d) ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.

Notwithstanding any other provisions of the Agreement, (i) Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of Receiving Party or any of its Representatives, and (ii) Customer shall not disclose any Provider Confidential Information to any Person who is not an Authorized User.

8.4 Compelled Disclosures. If Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, Receiving Party shall: (a) promptly, and prior to such disclosure, notify Disclosing Party in writing of such requirement so that Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, Receiving Party remains required by Law to disclose any Confidential Information, Receiving Party shall disclose only that portion of the Confidential Information that Receiving Party is legally required to disclose.

8.5 Protected Health Information. The parties agree to comply with the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) and each party’s respective obligations as set forth in the Business Associate Agreement, which is included as an addendum hereto and made part hereof.

9. Intellectual Property Rights.

9.1 Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider; all right, title and interest in and to the Third-Party Materials, including all Intellectual Property Rights therein, are and will remain with the applicable third-party providers. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 4.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

9.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.

9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce the Agreement and exercise its or their rights, and perform its or their obligations hereunder. Customer hereby irrevocably grants all such rights and permissions in or relating to De-Identified Data to use such data for any purpose in its sole and absolute discretion. Customer acknowledges that such De-Identified Data does not constitute Confidential Information of Customer.

9.4 Feedback. Provider alone shall own all right, title and interest, including all related Intellectual Property Rights, and Customer does hereby irrevocably assign to Provider all right, title and interest, including, without limitation, any and all Intellectual Property Rights in and to any suggestions, ideas, enhancements requests, feedback, recommendations or other information provided by Customer relating to the Services or Provider Materials.

10. Representations and Warranties.

10.1 Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Customer that Provider will perform the Services in a professional and workmanlike manner and will use reasonable efforts to devote adequate resources to meet its obligations under the Agreement.

10.2 Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights, of any third party or violate any applicable Law.

10.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’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. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

11. Indemnification.

11.1 Definitions. For purposes of this Section 11, the following terms are hereby defined:

(a) “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

(b) “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, 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 providers.

11.2 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee resulting from any Action by a third party (other than a Customer Indemnitee or an Affiliate of a Customer Indemnitee) that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with the Agreement (including the Specifications) infringes or misappropriates such third party’s US Intellectual Property Rights. The foregoing obligation does not apply to Actions or Losses arising out of or relating to any of the following (each an “Excluded Claim”):

(a) Third-Party Materials or Customer Data;

(b) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation;

(c) modification of the Services or Provider Materials other than by Provider;

(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or

(e) the use of the Services or Provider Materials by any person or entity or in any manner not expressly permitted under the Agreement;

(f) Provider’s compliance with any rules, specification or requirement of Customer or a third party; or

(g) Customer Data (including any Processing thereof by or on behalf of Provider in accordance with the Agreement) or any content of Customer or a third party or any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User.

11.3 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Action or Losses arise out of or result from, or are alleged to arise out of or result from any act or omission of Customer or Authorized Users not permitted by the Agreement or any Excluded Claim.

11.4 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.2 or Section 11.3, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms that include an admission of wrong doing or equitable relief against the Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.

11.5 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:

(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by the Agreement;

(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under the Agreement; or

(c) by written notice to Customer, terminate the Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that, subject to Customer’s compliance with its post-termination obligations set forth in Section 13.2, Customer will be entitled to a refund of a pro-rated portion of the applicable Fees paid under the Agreement for the terminated portion of the then current Term.

11.6 SOLE REMEDY. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12. Limitations of Liability.

12.1 EXCLUSION OF DAMAGES. THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION OR ANY OTHER INFORMATION PROVIDED BY THE SERVICE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION PROVIDED BY THE SERVICE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE 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; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) 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.

12.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH SUCH LIABILITY ACCRUED. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.3 Exceptions. The exclusions and limitations in Section 12.1 and Section 12.2 do not apply to Provider’s obligations under Section 11.

13. Termination.

13.1 Termination. In addition to any other express termination right set forth elsewhere in the Agreement:

(a) Provider may terminate the Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 4.1, Section 6.1, or Section 8;

(b) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and

(c) either party may terminate the 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.

13.2 Effect of Termination or Expiration. Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:

(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;

(b) Provider shall immediately cease all use of any Customer’s Confidential Information and (i) promptly return to Customer, all documents and tangible materials containing, reflecting, incorporating, or based on Customer’s Confidential Information; and (ii) permanently erase all Customer’s Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider’s obligations under this Section 13.2(b) do not apply to any Resultant Data or De-Identified Data;

(c) Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Provider’s Confidential Information; and (ii) permanently erase all Provider’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 13.2(c);

(d) notwithstanding anything to the contrary in the Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information provided that such Confidential Information shall remain subject to all applicable confidentiality requirements of the Agreement and that such information may be used solely to evidence the parties’ performance, non-performance, compliance with or breach of the Agreement; (ii) Provider may retain De-Identified Data; and (iii) Provider may retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and

(e) Provider may disable all Customer and Authorized User access to the Service and Provider Materials.

13.3 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 4.1, Section 8, Section 10.3, Section 11, Section 12, Section 13.2, this Section 13.3, and Section 14.

14. Miscellaneous.

14.1 Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Agreement.

14.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the 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.

14.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Agreement or, unless expressly permitted under the Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.

14.4 Notices. Except as otherwise expressly set forth in the Agreement, any notice, request, consent, claim, demand, waiver, or other communications under the Agreement have legal effect only if in writing and addressed to a party at their respective addresses as set forth on the Purchase Order (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.4). Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

14.5 Interpretation. For purposes of the Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in the Agreement: (x) to sections, exhibits, schedules, attachments, addenda, and appendices mean the sections of, and exhibits, schedules, attachments, addenda, and appendices attached to, the Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend the Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, addenda, and appendices referred to herein are an integral part of the Agreement to the same extent as if they were set forth verbatim herein.

14.6 Headings. The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.

14.7 Entire Agreement. The Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

14.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under the Agreement for which Provider’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under the Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.8 is void. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

14.9 Force Majeure. In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Provider’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 the 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. Either party may terminate the Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.

14.10 No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.

14.11 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of the 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 the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will 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.

14.12 Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.13 Governing Law; Submission to Jurisdiction. The Agreement is governed by and construed in accordance with the internal laws of the State of West Virginia 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 State of West Virginia. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of West Virginia in each case located in the city of Huntington and county of Cabell, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s notice address under Section 14.4 shall be effective service of process for any suit, action, or other proceeding brought in any such court.

14.14 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.

14.15 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 8, Section 4.1, Section 5.3, or Section 6.1, would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

14.16 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by Provider arising out of or related to the Agreement, the Provider is entitled to recover its attorneys’ fees and court costs from the Customer.

14.17 Counterparts. The 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 the Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.