GRAPHIUM HEALTH

Master Service Agreement

THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR RIGHT TO USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement is effective between You and Us as of the date of You accepting this Agreement.

Table of Contents
1. DEFINITIONS
2. LICENSE
3. USE OF THE SERVICES
4. FEES AND PAYMENT FOR PURCHASED SERVICES
5. PROPRIETARY RIGHTS
6. CONFIDENTIALITY, PRIVACY, AND PUBLICITY
7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
8. MUTUAL INDEMNIFICATION
9. LIMITATION OF LIABILITY
10. TERM AND TERMINATION
11. NOTICES, GOVERNING LAW AND JURISDICTION
12. GENERAL PROVISIONS

1. DEFINITIONS
1.1 “Acceptable Use Policy” means the acceptable use policy for the Services available in the Admin Console.

1.2 “Admin Account(s)” means the administrative account(s) We provide to You for the purpose of administering the Services. The use of the Admin Account(s) requires a password.

1.3 “Admin Console” means the online tool that We provide to You for use in reporting and certain other administration functions.

1.4 “Administrators” means Your designated technical personnel who administer the Services to Users on Your behalf.

1.5 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means possession, directly or indirectly, of the power to direct the management and policies of another, whether through the ownership of voting securities, by contract, or otherwise.

1.6 “High Risk Activities” means uses of the Services in a manner in which the failure of the Services could lead to death, personal injury, or environmental damage.

1.7 “HIPAA”means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.

1.8 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1.9 “Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.

1.10 “Services” means the products and services that are ordered by You under an Order Form and made available by Us online via the customer login link at http://www.graphiumhealth.com and or http://www.graphiumemr.com, Our mobile applications, and/or other web pages or applications designated by Us, including associated offline components.

1.11 “Third Party Request” means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.

1.12 “Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, customers, and third parties with which You transact business.

1.13 “We,” “Us” or “Our” means GraphiumHealth LP, a Texas limited partnership.

1.14 “You” or “Your” means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.

1.15 “Your Data” means all electronic data or information submitted by Users of the Services.

2. LICENSE
2.1 License Grant. Graphium Health hereby grants you, during the License Term, a non-exclusive, non-transferable right to use the particular Services described in an applicable Order, solely for you internal business purposes, subject to the terms and conditions of the Agreement. All rights not expressly granted to you in the Agreement are reserved by Graphium Health and its licensors. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2 License Restrictions. You will not, directly or indirectly, (1) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or other underlying Graphium Health Technology; (2) modify, copy, reproduce, display to third parties, translate, or create derivative works based on (i) the Services or (ii) any Graphium Health Technology; (3) rent, lease, distribute, sell, resell, assign, or otherwise purport to transfer rights to the Services or any Graphium Health Technology; (4) use the Services or any Graphium Health Technology for timesharing or service bureau purposes or otherwise for the benefit of any third party; (5) remove any proprietary notices from the Services or any Graphium Health Technology; (6) publish or disclose to third parties any evaluation of the Services or any Graphium Health Technology without Graphium Health’s prior consent; (7) create any link to the Services or frame or mirror any Content contained on, or accessible from, the Services, without Graphium Health’s prior written consent; (8) assert, authorize, assist, or encourage any third party to assert, against Graphium Health or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Graphium Health Technology you have used; or (9) use Graphium Health Technology in any manner or for any other purpose other than as expressly permitted by this Agreement.

2.3 Charges. Unless otherwise specified in the applicable Order Form, Services are purchased on an estimated annual per case basis.

2.4 User Accounts. User Accounts are for designated Users only and cannot be shared or used by more than one User.

2.5 Modifications. We may make commercially reasonable changes to the Services from time to time. If We makes a material change to the Services, We will inform You unless You have opted out of receiving such notifications from Us.

3. USE OF THE SERVICES
3.1 Resources. You are responsible for obtaining and maintaining all computer hardware, software, communications equipment, facilities and equipment needed to access the Services, and for paying all third-party access charges (e.g., charges of Internet or telecommunications service providers) incurred in connection with using the Services.

3.2 Customer Responsibilities. You are solely responsible for your actions and the actions of your Users (and any of your other employees or agents) while using the Services and the contents of any Customer Data and other information or materials that may be stored or transmitted through your use of the Services. You agree: (1) to abide by all local, state, national, and international laws and regulations applicable to your use of the Services, including the laws and regulations of any country; (2) not to upload or distribute in any way files that contain viruses, corrupted files, or any other software code that may damage the operation of the Services or any other computers or facilities; (3) not to interfere with or disrupt networks or facilities used in providing, or that are connected to, the Services; (4) not to post, promote or transmit through the Services any material that is unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (5) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (6) not to interfere with any other customer’s use and enjoyment of the Services or any another person or entity’s use and enjoyment of services provided by Graphium Health or any third party; and (7) to comply with all regulations, policies and procedures of networks connected to the Services. You acknowledge that the laws and regulations governing the use of the Services may change from time to time. You acknowledge and agree that Graphium Health neither endorses the contents of any of its customers’ communications, nor assumes any responsibility for the time, place, manner, or contents of any such communications. You further acknowledge and agree that Graphium Health has the right, but not the obligation, to implement mechanisms to screen, monitor, modify, and remove any content posted or stored on the Services or transmitted through the Services, at any time, which violates this Agreement, without notice.

3.3 Availability and Support.
Support Services includes customer support in the form of self-administered help notes at graphiumhealth.freshdesk.com. Basic email and telephone support through Graphium Health’s customer service department is available with the purchase of one or more of Graphium Health’s packages of implementation and training Services. Unintended or improper use of the Service or breach of this Agreement may, at Graphium Health’s sole discretion, void your access to customer support. Graphium Health does not provide support for integrations between the Service and third party applications unless otherwise expressly agreed between the Parties in writing.

We shall: (a) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (1) planned downtime (of which We shall give at least 8 hours notice via graphiumhealth.statuspage.io and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday (Pacific Time), or (2) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (c) provide the Services only in accordance with applicable laws and government regulations.

3.4 Your Data and Account Information. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Your Data, and We will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data, except as provided in the separate “Business Associate Agreement” governing the Services. The Business Associate Agreement will govern the handling of protected health information as mandated by HIPAA and other applicable laws. We shall use reasonable efforts to protect Your Data behind a secure firewall system, to conduct regular data backups, and to store such backups using commercially reasonable measures.

3.5 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the Acceptable Use Policy and applicable laws and government regulations.

3.6 Your Administration of the Services. You may specify one or more Administrators using the Admin Console who will have the rights to access Admin Account(s) and to administer the User Accounts. You are responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. You agree that Our responsibilities do not extend to the internal management or administration of the Services for You and that We are merely a data-processor.

3.7 End User Consent. Your Administrators may have the ability to access, monitor, use, or disclose data available to Users within the User Accounts. You will obtain and maintain all required consents from Users to allow: (i) Your access, monitoring, use and disclosure of this data and Our providing You with the ability to do so; and (ii) Us to provide the Services.

3.8 Unauthorized Use. You will use commercially reasonable efforts to prevent unauthorized use of the Services’ and to terminate any unauthorized use. You will promptly notify Us of any unauthorized use of, or access to, the Services of which You become aware.

3.9 Third Party Requests. You are responsible for responding to Third Party Requests. We will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify You of Our receipt of a Third Party Request; (b) comply with Your reasonable requests regarding Your efforts to oppose a Third Party Request; and (c) provide You with the information we were provided for You to respond to the Third Party Request. You will first seek to obtain the information required to respond to the Third Party Request on Your own, and will contact Us only if You cannot reasonably obtain such information.

3.9 Usage Limitations. Graphium Health reserves the right to establish, and to update and otherwise modify, limitations upon the use of the Services from time to time upon written notice to you. For example, Graphium Health may implement limits on disk storage space, on the number of Users accounts, the number of encounters, the number of form types included in the Service, or other information that You are permitted have through the Services.

4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1 Fees. You shall pay all fees specified in all Order Forms hereunder for the entire License Term. All Fees are referred to and payable in United States Dollars. Except as otherwise specified herein or in an Order Form, (a) fees are based on services purchased, and (b) payment obligations are non-cancelable and fees paid are non-refundable. Graphium Health reserves the right to modify its Fees and to introduce new Fees at any time, upon at least 30 days prior notice to you.

4.2 Invoicing and Payment. You will have a Billing Period of 12 months unless otherwise stated on the applicable Order. Billing Periods are based on calendar months, ending the last day of the last calendar month of the Billing Period. The applicable license Fees are billed in advance on a pro-rata basis as of the Effective Date through the end of the Billing Period in which the Effective Date falls. Thereafter, all license Fees are billed or invoiced in advance at the commencement of each Billing Period.

Extended support Fees and customization Fees are billed in advance in full. Payment in full for all Fees is due prior to delivery of the Services or other services. You agree to provide and maintain complete and accurate billing and contact information in the Services.

You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form. Such charges shall be made annually in advance, or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 15 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

In the event your Payment Source is invalid upon payment due date, you will be charged a reprocessing fee of $25.00. Graphium Health is not responsible for any Fees or charges of any nature, including but not limited to overdrawn account, excess limit, banking, or finance Fees or charges, resulting from charges billed by Graphium Health.

4.3 Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% per month (compounded daily) of the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable costs and expenses incurred (including reasonable attorney Fees) in collecting past due amounts and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

4.4 Billing Errors. You must contact Graphium Health in writing no later than 60 days after the date of the applicable invoice to report a billing error. If an error notice is not received within 60 days of the date of the invoice, you waive any right to an adjustment or credit and agree to pay the amount billed.

4.5 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days prior notice that Your account is overdue, in accordance with Section 11.1 (Manner of Giving Notice), before suspending services to You.

4.6 Payment Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or Section 4.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.7 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.

5. PROPRIETARY RIGHTS
5.1 Intellectual Property Ownership. Graphium Health (and its licensors, where applicable) will exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Services, the Graphium Health Technology, and any modifications thereto or derivative works thereof. Further, Graphium Health will exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Services or Graphium Health Technology (the “Feedback”). You hereby assign, and agree to assign, any and all right, title, and interest, including all related Intellectual Property Rights, in and to the Feedback and any modifications to, or derivative works of, the Services and the Graphium Health Technology. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the Graphium Health Technology or the Intellectual Property Rights owned by Graphium Health or its licensors, where applicable. The Graphium Health name, the Graphium Health logo, and the product names associated with the Services are trademarks of Graphium Health or third parties, and no right or license is granted to use them. Other trademarks, logos, and trade names that may appear on the Services are the property of their respective owners. Graphium Health reserves to itself all rights in and to the Services and Graphium Health Technology not expressly granted to you in accordance with this Agreement.

5.2 Rights to Your Data. You will retain all ownership of Your Data that you submit to the Services in the course of this Agreement. You, not Graphium Health, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all Your Data. You will ensure that you and Graphium Health have the right to use Your Data as contemplated by this Agreement, and you hereby grant, and agree to grant, Graphium Health the right to use all Your Data for the purposes set forth in this Agreement.

Graphium Health will take commercially reasonable measures to protect Customer Data on the Services. However, Graphium Health is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. Except as permitted in this Agreement, Graphium Health will not willfully (1) edit or delete Your Data unless (a) authorized by you, (b) Graphium Health is required to do so by law, or (c) in the good faith belief that such action is necessary to: (i) conform with applicable laws or comply with legal process served on Graphium Health, (ii) protect and defend the rights or property of Graphium Health, or (iii) enforce this Agreement; or (2) disclose Your Data unless (a) authorized by you, (b) Graphium Health is required to do so by law, or (c) in the good faith belief that such action is necessary to conform with applicable laws or comply with legal process served on Graphium Health.

You grant to Graphium Health an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, and display User statistical information and Your Data such as usage, traffic patterns, or User activities in aggregate form to third parties, but such information will not include information which could be used to identify you or any person. Graphium Health may access Your Data to service or respond to technical issues with the Services.

5.3 Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

5.4 Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

6. CONFIDENTIALITY, PRIVACY, AND PUBLICITY
6.1 Confidentiality. “Confidential Information” means any information that relates to the actual or anticipated business, research, or development of Graphium Health and any proprietary information, trade secrets, and know how of Graphium Health that is disclosed to you by Graphium Health, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, the terms and conditions of this Agreement and all Order Forms, research, product plans, products, prices, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information, along with information received from third parties for which Graphium Health has confidentiality obligations. Neither party shall disclose the terms of this Agreement or any Order Form to any third party without the other party’s prior written consent.

Confidential Information does not include any information that: (1) was publicly known and made generally available in the public domain prior to the time Graphium Health disclosed the information to you, (2) became publicly known and made generally available, after disclosure to you by Graphium Health, through no wrongful action or inaction of you or others who were under confidentiality obligations, or (3) was in your possession, without confidentiality restrictions, at the time of disclosure by Graphium Health, as shown by your files and records. You will not disclose any Confidential Information to any third party or use the Confidential Information for any purpose other than use and receipt of the Services in accordance with this Agreement. You will take all reasonable precautions to prevent any unauthorized disclosure of all Confidential Information.

6.2. Security
(1) Privacy Policies. You will maintain written privacy policies governing the use of the data you collect using the Services and you agree to abide by them.
(2) Passwords. Graphium Health will issue to you, or shall authorize a License Administrator to issue, a password for each User authorized to use your account. You and your Users must maintain the confidentiality of all passwords and ensure that each password is used only by the unique authorized User to whom such password is assigned. You are entirely responsible for any and all activities that occur under your account. You agree to immediately notify Graphium Health of any unauthorized use of your account (including any unauthorized use of any password of any User accessing the Services by means of your account) or any other breach of security known to you. Graphium Health will have no liability for any loss or damage arising from your failure to comply with these requirements.
(3) Security. Graphium Health will maintain the Graphium Health Technology used to provide the Services at third party colocation, hosting, and telecommunication facilities, where they are subject to commercially reasonable security precautions to prevent unauthorized access to the Services. You acknowledge that, notwithstanding such security precautions, unauthorized third parties may gain access to the Services and to any or all Your Data. Accordingly, Graphium Health cannot and does not guarantee the privacy, security, or integrity of any of Your Data or of any other data transmitted by or through the Services.

6.3 Publicity. Graphium Health may use your name and logo as part of a list of customers and may refer to you as a user of its Services in its advertising and marketing activities. Each Party shall obtain the other Party’s permission prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Services, will be prepared jointly between Graphium Health and you and will be issued only upon mutual agreement of the Parties.

6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
7.1 Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law).

7.2 Disclaimers. WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE COMPLETE, TIMELY, ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLIACABLE LAW, WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ADVICE, INFORMATION OR ACTION FROM GRAPHIUM HEALTH OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8. MUTUAL INDEMNIFICATION
You, including any of your parent organizations, subsidiaries, and other affiliates, will indemnify and hold harmless (and, if requested by Graphium Health, defend) Graphium Health, its parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (1) your use of the Services; (2) any claim alleging that transmission, storage, or other use of Your Data infringes the rights of, or has caused harm to, a third party; or (3) a claim alleging or based upon any facts that, if true, would constitute a violation by you of any of your covenants, representations, or warranties in this Agreement. If Graphium Health requests that you defend Graphium Health, Graphium Health will (1) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Graphium Health of all liability and such settlement does not affect Graphium Health’s business, the Services, or any of its other products or services); and (2) provide reasonable information and assistance in connection with the defense and settlement of the claim.

9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT WILL GRAPHIUM HEALTH’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY OR OTHERWISE) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 3 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).

9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL GRAPHIUM HEALTH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF GRAPHIUM HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY GRAPHIUM HEALTH TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.

10. TERM AND TERMINATION
10.1 Term of Agreement. Unless earlier terminated as specified in this Agreement, the initial License Term will be 12 months, or as may be otherwise specified on the applicable Order, commencing on the Effective Date and ending on the last day of the last calendar month of the 12 month period, or other period specified on the Order (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal License Terms equal in duration to the Initial Term (each, a “Renewal Term”) unless written notice is provided to Graphium Health at least 10 days prior to the completion of the Initial Term, or any subsequent Renewal Term, stating the party has elected not to renew the License Term. The renewal User license Fees will be equal to the then-estimated number of total annual cases multiplied by the per case license Fee in effect at the time of renewal, or as specified by Graphium Health at the time of renewal. Renewal Fees for other services will be charged on an as-quoted basis. The Initial Term and any and all Renewal Term(s), if any, constitute the “License Term.”

10.2 Termination or Suspension for Cause. Any breach of your obligations under this Agreement will be deemed a material breach of this Agreement. Graphium Health, in its sole discretion, may terminate, suspend, or otherwise restrict your password, account or use of the Services if you breach or otherwise fail to comply with any of your covenants, representations, or warranties in this Agreement. Where the breach is for non-payment, you shall have ten (10) days following receipt of written notice by Graphium Health to cure the breach for past due amounts owing before Graphium Health may terminate the Agreement. Past due invoices are subject to a late fee of $25.00 and finance charges of 1.5% per month (compounded daily) on any balance more than 30 days past due, or the maximum permitted by law, whichever is less, plus all reasonable costs and expenses incurred (including reasonable attorney Fees) in collecting past due amounts. You will continue to be charged during any period of suspension or while your account is otherwise limited or restricted. Upon termination of this Agreement for cause, if you have not paid all Fees for the then-current License Term, you agree to pay the sum of any unbilled Fees from the then-current License Term, in addition to any unpaid balances at the time of termination of this Agreement. Graphium Health reserves the right to impose a reconnection Fee in the event that your account is suspended.

A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party ceases its operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not dismissed within ninety (90) days.

10.3 Effect of Termination. Upon request by You made within 30 days after the effective date of termination of this Agreement, We will make available to You for download a file of Your Data in a format of our choosing. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control by removing pointers to it on Our active servers and overwriting it over time.

10.4 Surviving Provisions. Section 4 (Fees and Payment), Section 5 (Proprietary Rights), Section 6 (Confidentiality), Section 7.2 (Disclaimers), Section 8 (Mutual Indemnification), Section 9 (Limitation of Liability), Section 10.3 (Return of Your Data), Section 11 (Notices, Governing Law and Jurisdiction) and Section 12 (General Provisions) shall survive any termination or expiration of this Agreement.

11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1 Manner of Giving Notice. We may give notice by means of a general notice on the Services, email to the e-mail address in Our records for Your account, or by written communication sent by first class mail or pre-paid post to the address in Our records for Your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email) or posting to Services. You may give notice to Us (such notice shall be deemed given when received) at any time by the following: email to the email address of [email protected]

11.2 Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Collin County, Texas.

11.3 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12. GENERAL PROVISIONS
12.1 Export Compliance. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (1) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (2) you shall not permit any Users to access or use any Services in violation of any U.S. export embargo, prohibition, or restriction.

12.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.3 Force Majeure. Neither Party will be in default of any obligation under this Agreement (other than payment obligations) to the extent that its failure to perform is caused solely by conditions beyond that Party’s reasonable control, such as acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements that prevent or prohibit Graphium Health from providing Services.

12.4 No Third-Party Beneficiaries. This Agreement is made for the benefit of Graphium Health and you, and not for the benefit of any third parties. No other person or entity will be a third-party beneficiary to this Agreement.

12.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.7 Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.2 (Invoicing and Payment).

12.8 Injunctive Relief. Actual or threatened breach of Section 2 (License), Section 3 (Use of Services), Section 6 (Proprietary Rights), or Section 7 (Confidentiality, Privacy, and Publicity) may cause immediate, irreparable harm that would be difficult to calculate and could not be remedied by payment of damages alone. Accordingly, Graphium Health will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.

12.9 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.

12.10 Amendment. We reserve the right to modify the terms and conditions of this Agreement or Our policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Services. You are responsible for regularly reviewing this Agreement. Continued use of the Services after any such changes shall constitute Your consent to such changes.

12.11 Headings. The headings in this Agreement are for reference only and will not limit or otherwise affect the meaning of any provisions of this Agreement.

12.12 Subsequent Agreements. In order to be effective, all terms and conditions of subsequent agreements related to any subject matter in this Agreement must be agreed upon in writing and signed by both Parties.

11.13 Entire Agreement. This Agreement, including all corresponding Orders and exhibits where applicable, contain the entire agreement of the Parties and supersedes any and all prior and contemporaneous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement supersedes any terms printed on your purchase order or other communications. In the event of any conflict between these Master Terms and Conditions and the terms of the Order, the terms of the Order will govern, but solely to the extent of the conflict.

This document was last updated on May 5, 2015.
GRAPHIUM HEALTH MASTER SERVICES AGREEMENT
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