Service Agreement 10-25-23

Version: October 25, 2023

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This Service Agreement is an Attachment that is incorporated by reference into the Service Order (as defined below), and including any schedules, exhibits, and other attachments hereto which are entered into by the Parties hereunder (all of the foregoing, collectively, this “Agreement”) by and between NexHealth, Inc. (“NexHealth”) and the organization agreeing to the terms of this Agreement as indicated in the Service Order (“Customer”) (each a “Party,” collectively the “Parties”).

This agreement includes limitations of liability, an agreement to individually arbitrate disputes, and a waiver of class action and jury rights (Section 13.2 (Arbitration)).

1.             STRUCTURE

1.1           Scope. This Agreement sets forth the terms pursuant to which Customer may purchase, and NexHealth will provide, subscriptions (i.e., usage rights for specific, limited time periods) to NexHealth’s proprietary appointment scheduling, patient communications, payment processing, and other software applications, and certain related software applications, components, and features or functionality incorporated in or integral to such software applications, which are designed for installation or use on Customer’s and its Users’ (as defined in Section 2.4) computers and mobile devices, including without limitation NexHealth’s Access Protocols (defined below) (any such subscription, a “Subscription,” and any such solution, software application, or feature, a “Solution”). “Access Protocols” means the security keys, access codes, technical specifications, connectivity standards or protocols, relevant procedures, and the data exchange (e.g., read/write) software or applications developed or provided by NexHealth to access or use Solutions. Your installation and use of Access Protocols are also subject to the Synchronizer Agreement (www.nexhealth.com/legal/synchronzier-agreement).

1.2           Orders. A Customer may choose to enter into an order with NexHealth or Intermediary for a Solution (each, a “Service Order”). For the avoidance of doubt, this Service Agreement is incorporated by reference into each and every executed Service Order. Any updated Service Order, or an amendment to an existing Service Order will also be subject to this Attachment, unless otherwise stated therein. Each Service Order shall describe the applicable Solution, the Service Order Term (as defined in Section 9.2 and subject to Section 5.1), the fees to be charged, Subscription and User details and Usage Parameters (as defined in Section 2.4), and other relevant information. Each Service Order shall reference and be subject to the terms of this Agreement and may contain additional terms applicable to the specific Solution described therein. Except as otherwise provided in the applicable Service Order: (i) Subscriptions are purchased for the Term stated therein; and (ii) additional Locations may be added during a Service Order Term at the same pricing as the underlying Locations, and shall be co-terminated and prorated for the remainder of the applicable Service Order Term. If Customer’s Location count exceeds the current number of Locations in the applicable Service Order(s), NexHealth may notify Customer (email sufficing) of such overage and invoice Customer for the excess Locations (which will then become additional authorized Locations), based on the billing terms of the applicable Service Order.  NexHealth or an authorized reseller may also agree to Customer’s purchase of additional Subscriptions to the Solutions and to increases in the Usage Parameters with respect to Solutions for which Customer then has purchased Subscriptions (collectively “Upgrades”), and the associated fees, whether from a portal within the Product, if available, or by phone or email. Customer represents Users with an account (e.g. an office manager) has the authority to contract for Upgrades. Any URLs provided in a Service Order or any other Attachment may be updated or redirect. Unless stated otherwise in the Service Order, the restricted geography for use of the Solution is the United States. Customer agrees its purchases are not contingent on any future Access Protocols, functionality or features, or dependent on any oral or written public comments made by NexHealth regarding future Access Protocols, functionality or features. If Customer desires to purchase the Services through a party authorized by NexHealth to resell Subscriptions to the Solutions to Customer (an “Intermediary”), NexHealth reserves the right in its sole discretion to extend the terms of this Agreement to such purchase or require the standard contracting for Intermediary purchases. In the event NexHealth agrees to extend the terms of this Agreement to a purchase through an Intermediary, Section 5 (Fees and Payment) and, if there are conflicting terms with the Intermediary Service Order, Section 9.3 (Automatic Renewal), will be without effect and the terms between the Intermediary and Customer covering such subject matter will apply instead. NexHealth reserves the right to terminate any Intermediary Service Order, upon notification to the Intermediary and with no penalty or liability to Customer, where the applicable Intermediary fails to timely pay amounts due respect of the Intermediary charges.

1.3           Third-Party Products. Customer may purchase or use applications, subscriptions, licenses, or similar rights to third-party technology products that are identified separately from the Solutions (e.g., “add-ons”, or Record System applications (defined below) not provided or sold by NexHealth (collectively, “Third-Party Products”). “Record Systems” means third-party electronic data repository systems, including, but not limited to, electronic health record systems as set forth on the Service Order and as otherwise enabled for Customer by NexHealth. For the avoidance of doubt, Third-Party Products do not constitute part of the Solutions, regardless of whether the Solutions may access (i.e., read) or exchange (i.e., write) data within, or otherwise interact with, the Third-Party Products. Third-Party Products may be subject to separate terms (as presented to Customer by the Third-Party Products, or to which notice is otherwise provided). The applicable third-party licensors or suppliers are solely responsible for Third-Party Products and their use and operation, and Customer represents and warrants its compliance with any applicable separate terms, and to look solely to such third parties for any remedies, regarding Third-Party Products. Customer further acknowledges and agrees that the Solutions may require access to, exchange of, and use of Consumer Data (defined in Section 7) generated by or stored within Third-Party Products to function as designed, and that Customer is solely responsible for ensuring that NexHealth and the Solutions currently have and will continue to have full and authorized access to any such Consumer Data.

2.             SOLUTIONS

2.1           Subscription. Subject to the terms of this Agreement and any applicable Service Orders and Usage Parameters, Customer shall have a non-exclusive, worldwide, non-transferable (except as provided in Section 2.2 (Affiliates and Clients), non-assignable (except as permitted by Section 14.6(Assignment), right to access and use the Solution for which Customer has purchased a Subscription as reflected on the Service Order, and solely for the internal business purposes of Customer, as applicable, during the applicable Service Order Term. All rights to the Solutions not expressly granted to Customer and its Affiliates and Clients, as applicable, herein are reserved by NexHealth and its licensors.

2.2           Affiliates and Clients. Affiliates and Clients (as defined below) of Customer that have not entered into a separate agreement directly with NexHealth may access and use the Solutions through Customer’s account hereunder, during the applicable Service Order Term (defined in Section 9.2 (Subscription Term) and solely for Customer’s benefit, subject to all restrictions and obligations of Customer contained herein. Customer shall be responsible for any such Affiliates’ and Clients’ compliance with the terms of this Agreement, including all representations and warranties and the obligations of confidentiality contained herein, and for any breach of this Agreement by any of its Affiliates or Clients. Use of the Solutions by the Customer Affiliates and Clients shall, for purposes of this Agreement, be deemed use by Customer. An “Affiliate” of either Party means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party. For this purpose, “control” means the possession of the power to direct, or to cause the direction of, the day-to-day management, operation, and policies of any given person or entity. A “Client” of a Customer is any medical or dental care provider (“Practice”) that has contracted with Customer for the provision of services to the Practice, including but not limited to, services similar to the available Solutions. An example is when Customer is a management services organization or a dental services organization or similar entity and they have a medical practice that is a client for which they make available technology solutions.

2.3           Data Hosting and Maintenance. Customer acknowledges and agrees that NexHealth may as part of its ordinary business operations host and maintain a copy of Customer Data (as defined in Section 7) in connection with the Solutions. However, NexHealth does not offer data hosting and maintenance as a separate service. As between the Parties, Customer is solely responsible for the archival maintenance and storage of records and documentation for any mandatory or regulatory record or documentation retention requirements and any other legal responsibilities associated with record maintenance, and NexHealth will have no responsibility therefore.

2.4           Permitted Use. Customer’s access to and use of any Solution is limited to the specific number of Customer locations and other applicable usage parameters (e.g., supported electronic health record systems, etc.) specified in the relevant Service Order (collectively, the “Usage Parameters,” with “User” meaning an individual or class of individuals whom Customer designates, or defines or provisions in the Solutions, as being permitted to use the Solutions, including employees of Customer, Customer’s Affiliates and Clients, and any third-party consultants, contractors, and agents engaged by Customer, whom Customer authorizes to use any functionality, portion, or component of the Solutions, and any patients or prospective patients of Customer (or their applicable legal representatives) whom Customer invites to, or who otherwise elect to, use the Solutions in connection with receiving healthcare-related services from Customer.  Users may only use the Solutions as necessary and appropriate to, as applicable, assist or perform their assigned duties for Customer or in connection with their (or other family member(s)) receiving healthcare-related services from Customer. Customer acknowledges and agrees that relevant Users will be required to agree, as relevant, to the then-current User Agreement (www.nexhealth.com/legal/account-user-agreement), to the then-current Synchronizer Agreement, to the then-current patient or consumer facing agreement, and/or then-current Platform Privacy Policy (https://www.nexhealth.com/legal/platform-privacy-policy), each as posted or made available in the Solutions or on the website on or through which the Solutions are made available (the “User Agreement,” "Synchronizer Agreement," “Patient Agreement” and “Privacy Policy,” respectively (with names subject to change), or collectively the “User Documents”). Subscriptions and User logins and credentials (“IDs”) for Solutions shall be kept confidential and may not be shared or used by more than one individual during any given period of time. However, Customer may share an ID with another User if they obtain NexHealth’s advance written consent and an accurate, programmatic audit log is maintained of each shared User’s activities in compliance with Applicable Law (as defined in Section 2.6). Customer may delete and add User IDs from time to time, as reasonably necessary to accommodate changes in personnel and duties, subject at all times to any applicable Usage Parameters. Customer shall be responsible and liable for all access to and use of the Solutions by any Users or otherwise occurring under Customer’s account, Subscriptions, or IDs. Customer shall notify NexHealth immediately of any unauthorized use of Customer’s Subscriptions or any other actual or suspected breach of security regarding the Solutions of which Customer becomes aware.

2.5           Prohibited Conduct. Except as expressly permitted by this Agreement, Customer shall not, directly or indirectly: (a)use or permit the use of, reproduce, distribute, modify, encumber, time-share, license, sublicense, rent, lease, sell, resell, transfer, or otherwise make available to any third party any of the Solutions; (b) reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Solution or other software provided or made available by NexHealth; (c) defeat or circumvent, or attempt to defeat or circumvent, any security mechanism of any Solution or of any website from which any Solution is made available; (d) remove, obscure or alter any trademark, copyright, or other rights notice or legend appearing on or in any Solution, any documentation, any legal terms presented to Users, or any other materials provided or made available by NexHealth; or (e) permit any third party to do any of the foregoing. Customer shall not use any Solution, or permit the use of any Solution: (i) to send unsolicited messages (via fax, email, or otherwise) in violation of Applicable Law; (ii) to store, send, or provide access to obscene or otherwise illegal or inappropriate materials; (iii) to store, send, or provide access to materials that would infringe any intellectual property right, or violate any privacy right, of any third party; (iv) to impersonate, or attempt to impersonate, any third party or any fictitious individual; (v) in violation of this Agreement or any intellectual property or other proprietary rights of NexHealth; or (vi) in any manner that violates or does not comply with Applicable Law.  If, in NexHealth’s reasonable determination, Customer’s or any User’s use of any Solution is not in accordance with this Agreement or the applicable documentation, or is otherwise impairing or impeding the normal use or operation of the Solutions, or interfering with, jeopardizing, or creating risk to the security, confidentiality, integrity, operation, or use of the Solutions, NexHealth’s networks or systems, any data of Customer, NexHealth, or any third party, or any third-party systems with which the Solutions are interfaced or interconnected, then, in addition to its other rights and remedies under this Agreement, NexHealth may suspend Customer’s (or any User’s) access to and use of the affected portion or functionality of the applicable Solution, to the extent, and only for as long as is, reasonably necessary to resolve the issue as determined by NexHealth. NexHealth shall promptly notify Customer of any such suspension (via email or telephone, and in advance, except in urgent or emergency situations), explaining the reasons for the suspension, and the Parties shall diligently cooperate and work together in good faith to resolve the issue and restore Customer’s and all Users’ full use of the Solutions, as soon as reasonably practicable. The Solutions are offered and intended only for use by Users in the United States of America who are at least thirteen (13) years old and, if less than the legal age of an adult in the relevant jurisdiction, have the express permission of their parent or guardian to use the Solutions. Anyone who does not meet the requirements of the immediately preceding sentence is hereby prohibited from accessing and using the Solutions.

2.6           Compliance. Each Party shall comply with all federal, state, and local laws and regulations that apply to that Party, which include but are not limited to those related to kickbacks, state and federal consumer protection (including Telephone Consumer Protection Act), fraud and abuse, data privacy and access (including HIPAA), and Medicaid and Medicare, if applicable to a Party (collectively “Applicable Law”) with respect to the Solutions. Customer is solely responsible for compliance with Applicable Law with respect to Customer’s use of the Solution, including without limitation all coding and billing submitted to patients, health plans, government agencies, or any other third party, and any communications with Customer’s consumers.

2.7           Communication Policy. To the extent applicable to the Solution purchased by Customer, Customer agrees and authorizes NexHealth to enable functionality to send, to Customer or Customer’s Affiliates, Clients, Users and other designated third parties business and health-related notifications, reminders and other communications through the Solution or by email, text message, phone or other method of communication (collectively, “Messages”). Customer shall not use the Solution to place or otherwise make marketing or advertising communications or share phone numbers with third-parties for telemarketing purposes that do not comply with state and federal laws or with application telecommunications requirements (such as A2P) applicable to calls, texts, and emails. Customer represents that any phone number uploaded to NexHealth’s Solution was provided by one of its consumers for the purpose of receiving business and health-related communications. Customer may only use A2P phone numbers issued for text messaging via the NexHealth Solutions with the NexHealth Solutions and within the permissions obtained from Customer’s customers and patients, including for phone numbers collected outside of NexHealth. Customer agrees that it shall not engage in practices contrary to A2P requirements, even if Customer’s privacy policy states otherwise. Unless expressly agreed to by NexHealth in writing in connection with the Solution purchased by Customer, Messages may not be encrypted. Unsecured communications pose a risk to the confidentiality and privacy of the information being sent because they are susceptible to possible interception by a third party. NexHealth is not responsible for any data transmission fees for any Messages and, as between the Parties, Customer is solely responsible for paying any applicable charges payable to a cellular, broadband and/or messaging provider(s). Customer and Customer’s Affiliates, Clients, Users and other designated third parties may opt out of receiving Automated Messages as described in the NexHealth User Documents. Customer further acknowledges and agrees that Customer and Customer’s Affiliates, Client and Users are responsible for their own compliance with all Applicable Law, including (but not limited to) the Telephone Consumer Protection Act (TCPA), State mini-TCPA laws and CAN-SPAM, when Customer or Customer’s Affiliate, Client or User, respectively, uses a Solution to send or otherwise direct Messages.

2.8           Not a Medical Service. NexHealth does not offer or provide medical advice or healthcare services of any kind, and in no event shall NexHealth’s provision of the Solutions under this Agreement be deemed or considered the provision of any form of medical advice or healthcare services. As between the Parties, Customer is solely responsible for providing medical advice and healthcare services to Customer’s patients, and Customer hereby irrevocably indemnifies and releases NexHealth from any claims, demands, damages, and liabilities of any kind relating to Customer’s provision of medical advice or healthcare services.

2.9           Carrier Lines. The Parties acknowledge that access to the Solutions are provided over various facilities, communications lines, routers, switches, and other devices owned, maintained, and serviced by third-party carriers, utilities, Internet service providers, and other service providers (“Carrier Lines”), all of which are beyond the Parties’ control. No Party is liable for any delay, failure, interruption, interception, loss, transmission, or corruption of any data or other information transmitted on the Carrier Lines that are beyond the Party’s control. Use of the Carrier Lines is solely at the Parties’ risk and is subject to all Applicable Law.

3.             NEXHEALTH RESPONSIBILITIES

3.1           Support and Service Level Agreement. NexHealth shall provide administrative and technical support (via methods as they are or may become available), and problem response and resolution services, for the Solutions (collectively, “Support”) to Customer in accordance with NexHealth’s then-current Support policies and procedures.  NexHealth shall not be obligated to resolve or cure any alleged issue or defect resulting from Exclusions (defined in Section 10.4 (Exclusions). NexHealth will use commercially reasonable efforts to make the Solutions available for use not less than 99% of the time each month (the “SLA”), excluding scheduled downtime, events outside of NexHealth’s reasonable control, and any Exclusions (as defined in Section 10.4 (Exclusions). Customer’s sole remedy for NexHealth not meeting the SLA is provided in Section 10.3 (Exclusive Remedies).

3.2           Updates. NexHealth may from time to time, in its sole discretion, modify or enhance the Solutions (collectively “Updates”), but for the avoidance of doubt, shall in no way be required to modify or enhance the Solutions, including, but not limited to, upgrade to new technical infrastructures. Any such Updates NexHealth makes generally available without additional charge shall be provided for Customer’s use as reasonably determined by NexHealth. NexHealth may discontinue any Solutions, features, or functionality upon notice to you.

4.             CUSTOMER RESPONSIBILITIES

4.1           Responsibilities. Customer acknowledges and agrees that: (a) the obligations of NexHealth to provide the Solutions, and to otherwise perform, in accordance with this Agreement are dependent upon, among other things, the accuracy and completeness of information provided, and representations made by Customer, Customer having or obtaining the rights to use the Solutions in connection with Third-Party Products (including Record System vendors), prompt and appropriate decision making by Customer, and Customer’s performance of its obligations under this Agreement in a timely manner;(b) NexHealth shall be entitled to rely on any decisions and approvals of Customer that are communicated to NexHealth; and (c) NexHealth shall be excused from, and shall not be liable for, any delays or failures in NexHealth’s performance under this Agreement, to the extent such delays or failures are caused by or result from inaccuracy or incompleteness of information provided, or representations made, by Customer, lack of rights for the Solution to be used in connection with Customer’s Record System or with other Third-Party Products, changes in capacity of the Solutions caused by or resulting from accommodations NexHealth makes for Customer’s Third-Party Products, decisions made by Customer, or delays or failures by Customer in fulfilling Customer’s obligations under this Agreement in a timely manner.

4.2           Cooperation and Access. Customer shall cooperate with NexHealth, and Customer shall cause its third-party licensors, suppliers, and Third-Party Products (including Record System vendors) to cooperate with NexHealth, regarding NexHealth’s implementation, provision, and support of the Solutions under this Agreement (including, without limitation, the installation of any software reasonably necessary for NexHealth’s performance under this Agreement). Without limiting the foregoing, Customer shall make available to NexHealth in a timely manner and at no charge: (a) technical data, programs, program files, documentation, application program interfaces (“APIs”), test data, sample output, and similar information and resources that are reasonably required for NexHealth’s performance under this Agreement; and (b) such access to and use of Customer’s systems (including without limitation Third-Party Products), applications, servers, equipment, networks, data, and other information technology resources, and such physical access to Customer’s data centers or other facilities (all of the foregoing resources and facilities, collectively, Customer’s “IT Environment”), as are reasonably necessary for NexHealth’s performance under this Agreement; and (c) installation of such software in connection with NexHealth’s performance under this Agreement; Customer acknowledges and agrees that: (i) NexHealth needs full access to Customer’s Record System and other relevant data systems in order to operate the Solutions; and (ii) in connection with implementing and operating the Solutions, NexHealth personnel (i.e., natural persons engaged by NexHealth) may interact with and read Customer Data (as defined in Section 7 (Data Rights and Obligations)) for such purposes, including without limitation to provide technical support, ordinary business operations, and to exercise any access, exchange or use rights set forth in Section 7 (Data Rights and Obligations) and the Business Associate Agreement (defined below). As between the Parties, Customer is solely and exclusively responsible for obtaining, and Customer represents and warrants that it has or shall obtain, in a timely manner and at its cost and expense, any consents, approvals, authorizations, licenses, and permits of third parties (including, but not limited to, Customer’s Third-Party Products (including applicable Record System applications), third-party licensors, suppliers, and service providers) which are necessary or required for such access to and use of Customer’s IT Environment by NexHealth (collectively, “Third-Party Consents”), and Customer is solely responsible for ensuring that Third-Party Products permit the Solutions to access Third-Party Products (including Record System applications) as necessary for NexHealth’s performance under this Agreement. Customer agrees to provide reasonable evidence of such Third-Party Consents to NexHealth upon the written request of NexHealth from time to time. In addition, if NexHealth requires remote access to Customer’s IT Environment for NexHealth’s performance under this Agreement, then Customer is responsible for, at its cost and expense, making its applicable resources and facilities accessible via the Internet through an Internet connection of appropriate bandwidth and redundancy, and for facilitating such access through mutually agreed upon, industry standard means (i.e., then-current Citrix software).

5.             FEES AND PAYMENT

5.1           Fees. Customer shall pay NexHealth the fees specified or described in any Invoice (defined below) and Payment Processing Fees (2.9% + $0.30 per transaction). NexHealth deducts Payment Processing Fees and other fees related to the transaction from Customer transactions. Unless expressly otherwise provided in the applicable Service Order: (a) Subscription fees shall begin to accrue on the billing start date indicated in the applicable Service Order (or, if the billing start date is not specified in the Service Order, upon execution of the Service Order by both Parties); and (b) NexHealth may adjust the pricing or fees applicable to any Service Order to the pricing or fees then generally made available by NexHealth to similarly situated customers by providing Customer with written notice of the adjustment at least thirty (30) days prior to the effective date of the adjustment. If Customer does not object within the thirty (30) day notice period, Customer will be deemed to have consented to the adjustment. If Customer does object within the thirty (30) day notice period, Customer can continue to use the Solutions at the pricing or fees applicable prior to the notice for up to ninety (90) days from NexHealth’s initial written notice, at which point access to the Solutions will terminate. Subject to the immediately preceding three sentences, unless expressly otherwise provided in the applicable Service Order, the fees applicable to any additional Service Order increasing a Customer’s number of Subscriptions with respect to any given Solution pursuant to a previously executed Service Order which is then in force and effect (a “Previous Order”) shall be charged at the same rates as those then applicable to Customer’s use of the Solution under the Previous Order. In such a case, and in the case in which Customer purchases Subscriptions to additional Solutions pursuant to a subsequently executed Service Order, the Service Order Term of the additional Service Order shall be coterminous with that of the initially executed Service Order, and the fees applicable under the subsequently executed Service Order shall be appropriately prorated for any partial billing periods. All fees paid herein, for avoidance of doubt, are not compensation for royalties, but rather, are fees provided by Customer to NexHealth in exchange for services, including licenses granted under Section 2.

5.2           Invoicing and Payment. NexHealth shall invoice Customer for the fees due under any Service Order in accordance with the payment schedule or cycle and, to the extent applicable, the method of payment indicated in such Order (each an “Invoice”). These methods may include, but are not limited to: (a) Invoices sent via email by NexHealth to the email address specified in the Service Order or otherwise designated by Customer to NexHealth in writing and reasonably in advance, with all invoiced amounts due and payable on the due date indicated in the relevant Invoice or Service Order, as applicable; or (b) Invoices which are automatically and electronically charged to and payable by Customer under any Service Order (including, but not limited to, any amounts associated with any renewal of the Service Order Term of any Service Order) to the debit or credit card or bank account specified by Customer and stored by NexHealth, on the date of the applicable Invoice or the due date otherwise indicated in the applicable Service Order.

5.3           Late Payment. Any amount due and payable under this Agreement and not received by NexHealth by the applicable due date shall bear an additional charge of one and one-half percent (1.5%) per month (or the maximum rate permissible under applicable law, if less than the foregoing) from the date due or, in the case of automatic billing under subsection (b) above, ten (10) business days after the date Customer is notified of a failed payment, until the date paid. NexHealth reserves the right to suspend Customer’s use of the Solutions if Customer fails to pay any past-due amount within ten (10) business days after receiving written notice of the delinquent payment from NexHealth, until all then-unpaid, past-due fees and interest are paid in full. NexHealth shall be entitled to reimbursement from Customer of reasonable collection costs and attorneys’ fees incurred by NexHealth, in the event NexHealth retains a collection firm or legal counsel due to Customer’s failure to make payment in a timely manner. Except as expressly provided herein, all fees are nonrefundable, and payment obligations cannot be canceled, regardless of actual usage of the Solutions. If NexHealth is required by Applicable Law, legal process, or government action to produce information or personnel as witnesses with respect to the Solution or this Agreement, Customer shall reimburse NexHealth for any professional time, fees, and expenses (including reasonable external and internal legal costs) incurred to respond to the request, unless NexHealth is a party to the proceeding or the subject of the investigation.

5.4           Taxes. Fees do not include, and (unless Customer provides NexHealth with a valid tax exemption certificate) Customer shall pay, all sales, use, value-added, and similar taxes, all customs and import duties, and all similar levies, duties, and taxes imposed at any time (now or in the future) by any relevant jurisdiction (whether federal, state, or local in the United States or any applicable jurisdiction of any other country) in connection with this Agreement or the purchase, sale, or provision of the Solutions hereunder, excluding taxes on NexHealth’s income (collectively, “Taxes”).Customer agrees to bear, pay and be responsible for such Taxes, and Customer shall indemnify NexHealth from the payment of all such Taxes.

6.             INTELLECTUAL PROPERTY RIGHTS

6.1           Intellectual Property Definition. “Intellectual Property” means all of the following: (a) all inventions (whether patentable or un-patentable and whether or not reduced to practice), all improvements thereto; (b) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, web domain names, other source identifiers, and telephone numbers, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith; (c) all copyrightable works; (d) all mask works; (e) all trade secrets and confidential, technical, and business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, pricing and cost information, and plans and proposals); (f) all computer software (including source code, executable code, data, databases, and related documentation); (g) all advertising and promotional materials; (h) all other proprietary materials and information; and (i) all copies and tangible embodiments thereof (in whatever form or medium). “Intellectual Property Rights” mean all rights, title and interest in and to Intellectual Property in any jurisdiction throughout the world including, as applicable and without limitation: (i) all patents, patent applications, and patent disclosures, together with all reissuances, continuations, divisions, continuations-in-part, revisions, extensions, and reexaminations thereof; (ii) all copyrights, and all applications, registrations, and renewals in connection therewith; (iii) all mask work applications, registrations, and renewals in connection therewith; and (iv) all other proprietary rights.

6.2           Ownership of Pre-Existing Intellectual Property. Each Party shall retain ownership of all right, title and interest in and to any Intellectual Property and Intellectual Property Rights therein it owned or had an interest in prior to the Effective Date of this Agreement or which is developed outside of this Agreement (“Pre-Existing Intellectual Property”). Unless expressly stated in this Agreement, nothing in this Agreement shall be deemed to imply a license or transfer of ownership of either Party’s Pre-Existing Intellectual Property to the other Party or any third party.

6.3           NexHealth Intellectual Property. As between the Parties, the Solutions, any materials provided by NexHealth to Customer, and any Updates are all NexHealth’s Intellectual Property, regardless of whether conceived or created by NexHealth alone or in conjunction with Customer or third parties.

6.4           Customer Intellectual Property. Customer represents, and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to Customer’s Intellectual Property as may be necessary to fulfill the obligations and authorize the use contemplated by this Agreement. For avoidance of doubt, Customer Intellectual Property includes all necessary licenses to access and use any applicable Third-Party Product (including Record Systems), as required by Sections 1.3 (Third-Party Products) and 4 (Customer Responsibilities), herein. Customer agrees, as between the Parties, that Customer bears all responsibility and liability for the accuracy, completeness, possession and use of Customer’s Intellectual Property in connection with the Solutions. Customer acknowledges and agrees that nothing in this Agreement is intended to constitute a “work made for hire” within the meaning of Applicable Law.

6.5           Infringement Notification. If Customer discovers or is notified of an actual or suspected infringement or misappropriation of the Intellectual Property of NexHealth, Customer must notify NexHealth and terminate such infringement to the extent it is within the control of Customer or its agents or contractors. Customer will reasonably cooperate with and assist NexHealth in protecting, enforcing and defending NexHealth’s Intellectual Property.

6.6           Feedback. Customer may provide suggestions, requests for enhancements or functionality, or other feedback to NexHealth regarding the Solutions (collectively, “Feedback”). NexHealth shall have full discretion over whether or not to utilize any Feedback, including without limitation using such Feedback to make Updates to the Solutions. To the extent applicable, Customer grants NexHealth a perpetual, irrevocable, transferable, sub-licensable, non-exclusive, royalty free, fully paid up and worldwide license to: (a) copy, distribute, transmit, display, perform, modify and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. Customer further acknowledges that NexHealth provides the Solutions to a wide range of customers, and NexHealth is free to use all generalized knowledge, experience, skills, know-how and technologies (including without limitation ideas, concepts, processes and techniques) related to or acquired during performance of the Agreement.

6.7           Reservation of Rights; No Implied License. Except for the Subscription access in Section 2.1 (Subscription), and the limited rights expressly granted in this Agreement, no other use is permitted, and NexHealth reserves all right, title and interest in and to the Solutions and any materials provided by NexHealth to Customer (including the rights to any modification, extension, improvement, enhancement, configuration or derivative work of the Solutions or any such other materials). Customer agrees not to take any action inconsistent with such title and ownership. Customer further hereby irrevocably assigns to NexHealth any rights in or to the Solutions or any of the other materials described above which may otherwise vest in Customer or its personnel at any time.

7.             DATA RIGHTS AND OBLIGATIONS

7.1           Customer Data.

7.1.1       Customer Data Responsibility. Except as may be expressly excluded from this definition, “Customer Data” means all data and content uploaded by Customer or its Users to the Solutions or otherwise provided or made available by Customer to NexHealth under this Agreement. Customer Data excludes NexHealth Data (defined below) and Consumer Data (defined below). Consistent with Customer’s obligations in Section 4 (Customer Responsibilities), Customer represents, warrants and covenants that it has and will have all rights necessary and full legal authority to input, import, upload, submit or otherwise provide NexHealth with access to Customer Data for the Subscription, Solution and/or any and all related services, and to grant the rights in and to Customer Data granted to NexHealth in this Agreement. Customer acknowledges and agrees that Customer must not provide Customer Data to NexHealth if Customer does not have the requisite right and legal authority to permit NexHealth, under the terms and conditions of this Agreement, to use and disclose the Customer Data in connection with the Subscription, Solution and/or any and all related services, including without limitation the Business Associate Agreement (defined below). Customer further agrees, as between the Parties, that Customer bears all responsibility and liability for the accuracy, completeness, possession and use of Customer Data in connection with the Subscription, Solution and/or any and all related services. Customer represents, warrants, and covenants that the Customer Data provided to NexHealth is an accurate representation of the Customer Data maintained in its systems (e.g., its Record System and IT Environment).

7.1.2       Customer Data Ownership and License. As between the Parties, Customer shall own all right, title and interest in and to Customer Data. Subject to the limitations of Applicable Law, Customer grants to NexHealth a non-exclusive, royalty free, fully paid up, worldwide, non-transferable (except as permitted by Section 14.6 (Assignment), sublicensable right and license to access, copy, store, transmit, process, use, display, disclose, distribute, modify, and create derivative works based on the Customer Data during the Agreement Term (as defined in Section 9.1), for the following purposes: (a) as necessary and appropriate for NexHealth to fulfill its obligations under this Agreement, including without limitation as provided for in the Business Associate Agreement (defined below) and at a User’s direction for any of the purposes permitted in the User Documents with respect to any Customer Data that is attributable to a User; (b) to evaluate, audit, improve and develop its products and services, including without limitation the Solutions and for training any artificial intelligence or machine learning engine, system, neural network or similar system of NexHealth; or (c) as otherwise permitted by Customer in writing. Customer further authorizes NexHealth (and its agents and contractors) to: (i) aggregate and/or de-identify Customer Data; (ii) compile in the ordinary course of providing the Subscription, Solution or related services de-identified technical, statistical or analytical data from Customer Data (collectively, “Usage Data”); and (iii) use and disclose such aggregated and de-identified Customer Data, including without limitation Usage Data, on a non-attributed basis. To the extent an assignment of de-identified Customer Data is needed to permit NexHealth to obtain ownership of the right, title, and interest in, to or under, any or all of the De-Identified Data (defined below), Customer hereby assigns and transfers Customer’s right, title, and interest in, to, and under such de-identified Customer Data to NexHealth. To the extent NexHealth retains any Customer Data after termination of this Agreement (including according to NexHealth’s archiving, backup, and data retention policies), the license set forth in this Section shall be perpetual and continue for as long as NexHealth is authorized to retain the Customer Data.

7.1.3       HIPAA. In performing under this Agreement, each Party will comply with the applicable requirements of HIPAA concerning PHI. If applicable, NexHealth will comply with the terms of the HIPAA Business Associate Agreement posted and available at https://www.nexhealth.com/legal/customer-baa (the “Business Associate Agreement” or “BAA”, which is incorporated by reference into this Agreement and which may be relocated to a different URL upon notice) with respect to Customer Data that constitutes PHI. For the avoidance of doubt, the BAA is subject to all terms and conditions of set forth in this document and is collectively part of the Agreement. Customer further understands and agrees that in connection with the Solutions, NexHealth may obtain HIPAA authorizations and other consents and permissions directly from individuals in accordance with any applicable requirements of the Privacy Rule (defined in the BAA). Customer further acknowledges and agrees that NexHealth will not maintain any Designated Record Set(s), as that term is defined under HIPAA, on behalf of Customer, unless NexHealth gives prior, written, express permission to Customer that NexHealth will do so.

7.2           NexHealth Data.

7.2.1       NexHealth Data Definition. “NexHealth Data” means any and all De-Identified Data created or generated in connection with the Solution and any and all related services, including without limitation the Usage Data. “De-Identified Data” means data that, in accordance with 45 C.F.R. § 164.514(b), does not identify an individual who is the subject of the data and with respect to which there is no reasonable basis to believe that the information can be used to identify such an individual. An individual for purposes of this definition means a natural person.

7.2.2       NexHealth Data Ownership. As between the Parties, NexHealth shall own all right, title and interest in and to NexHealth Data and any Intellectual Property therein. The transactions and other matters set forth in this Agreement are not intended to, and does not, convey to Customer any right of ownership in or related to NexHealth Data now or hereinafter owned by NexHealth. Subject to the limitations of Applicable Law, Customer may use NexHealth Data as expressly permitted in Section 2 (Solutions).  For the avoidance of doubt, in no event shall NexHealth Data be deemed to constitute Customer Data or Confidential Information of Customer.

7.3           Consumer Data. Customer understands and acknowledges that NexHealth may also provide direct-to-consumer services, and that an individual consumer may choose to use NexHealth’s direct-to-consumer services before, after, or during the Agreement Term. The data, information or other materials NexHealth collects through its direct-to-consumer services from the consumer (“Consumer Data”) is not subject to any of the Agreement’s restrictions or limitations on Customer Data and PHI. As between Customer and NexHealth, NexHealth owns all Consumer Data and any Intellectual Property therein. Subject to the limitations of Applicable Law, Customer may use Consumer Data as expressly permitted in Section 2 (Solutions). Except as expressly stated in this Section, this Agreement does not provide Customer with any other rights, title, licenses or ownership of Consumer Data. For the avoidance of doubt, in no event shall Consumer Data be deemed to constitute Customer Data or Confidential Information of Customer.

7.4           Security. The Parties each agree to use commercially reasonable efforts to safeguard the security and integrity of the Solutions and Customer Data stored in the Solutions. Customer understands and agrees that no Customer or other data is ever completely secure. However, each Party agrees to maintain an information security program to protect against the unauthorized access, use, disclosure, modification, publication, theft or destruction of Consumer Data.

8.             CONFIDENTIALITY

8.1           Definition. In performance under this Agreement, each Party will have access to certain Confidential Information of the other Party or that the other Party is required to maintain as confidential pursuant to agreements with third parties. As used herein, “Confidential Information” means, with respect to either Party, all written or oral information disclosed to the other Party that relates to the business or operations of the disclosing Party and that either is identified or labeled as confidential or proprietary at the time of disclosure or reasonably would be understood to be confidential or proprietary, given the nature of the information or the circumstances of disclosure. Without limiting the foregoing, Confidential Information includes, but is not limited to: (a) with respect to each Party, non-public technical and non-technical data, marketing and promotional information, software programs and code (regardless of form or language), methods, techniques, strategies, processes, customer, employee and supplier lists and information, trade secrets, distribution methods, pricing and financial data, and other non-public data of or pertaining to such Party; (b) with respect to NexHealth, the Solutions and any associated documentation, software and methods, and NexHealth Data and Consumer Data; and (c) with respect to Customer, the Customer Data. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is or has become part of the public domain through no actor omission of the receiving Party; (ii) was already in the receiving Party’s lawful possession, without obligations of confidentiality, prior to disclosure hereunder; (iii) was rightfully communicated to the receiving Party, without obligations of confidentiality, by a third party; (iv) was independently developed by the receiving Party without use of, or access to, the other Party’s Confidential Information; or (v) is Customer’s PHI (which is protected by other provisions of this Agreement, including Section 7 (Data Rights and Obligations) and the BAA).

8.2           Restrictions. Each Party shall use at least the same level of efforts and care that it uses to protect its own confidential and proprietary information of a similar nature (but not less than reasonable care) to maintain the Confidential Information of the other Party in confidence and protect such Confidential Information from unauthorized disclosure to third parties.  Each Party may use, disclose, and reproduce the Confidential Information of the other Party only as appropriate for purposes of fulfilling such Party’s obligations, and exercising such Party’s rights, under this Agreement and as otherwise expressly permitted by this Agreement (including without limitation any use licenses).  Each Party shall restrict access to the other Party’s Confidential Information to those personnel, agents, and consultants of such Party who have a reasonable need for access to fulfill their duties to such Party and are subject to legally binding obligations of confidentiality substantially similar to those set forth herein. Upon termination or expiration of this Agreement or the written request of the other Party from time to time, each Party shall, within a commercially reasonable time, return or securely destroy all Confidential Information of the other Party then in such Party’s possession or control, except that: (i) if a legal proceeding of which such Party is aware has been instituted to seek disclosure of the Confidential Information of the other Party, or with respect to which such Confidential Information is known, or would reasonably be expected, to be material, such Confidential Information shall not be destroyed by such Party until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) any Confidential Information of the other Party held in archives or back-up systems of the receiving Party shall be allowed to expire and be deleted, destroyed, or rendered unreadable in accordance with the receiving Party’s reasonable archiving, backup, and data retention policies that are consistent with industry standards; or (iii) as otherwise expressly provided for in this Agreement. Except for any rights expressly granted in this Agreement, as between the Parties, each Party’s Confidential Information shall be and remain solely and exclusively the property of such Party. Each Party may disclose and retain Confidential Information of the other Party to the extent required: (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the Party required to make such disclosure first provides, unless prohibited by applicable law, written notice of the required disclosure to the other Party, affording it an opportunity to obtain a protective order; (y) to establish or enforce such Party’s rights under this Agreement; or (z) as otherwise expressly provided for in this Agreement.

8.3           Equitable Relief. Each Party agrees that any breach of this Section 8 by it or any third parties under its direction or control (including, but not limited to, with respect to Customer, any Users) may cause irreparable injury to the other Party that cannot be adequately compensated for in monetary damages and that, in such an event, and in addition to any other available rights and remedies, the other Party shall be entitled to seek injunctive and other relevant equitable relief, without the necessity of proving actual damages or posting bond.

8.4           Duration. Without limiting any protections available under Applicable Law, each Party’s obligations with respect to Confidential Information of the other Party set forth in this Section 8 shall continue in force and effect throughout the Agreement Term and for a period of five (5) years after termination of this Agreement; provided, however, that if such Confidential Information constitutes trade secrets, the Parties’ obligations shall continue until the later of five (5) years after termination of this Agreement or the last date on which the information no longer constitutes trade secrets.

9.             TERM AND TERMINATION

9.1           Agreement Term. The term of this Agreement (the “Agreement Term”) shall commence on the Effective Date and shall continue until no Service Orders or Subscriptions remain in force and effect under this Agreement, as described in this Section 9.

9.2           Subscription Term. Except as otherwise provided in Section 5.1 (Fees), the term of any given Service Order under which Subscriptions to any Solutions are purchased (the “Service Order Term”) shall commence on the Billing Start Date indicated in the Service Order and, unless earlier terminated, or renewed, in accordance with this Agreement, will continue for the period specified as the initial Service Order Term in such Service Order (or, if the initial Service Order Term is not specified in the Order, then for one (1) year). The minimum duration of any Service Order Term is three (3) consecutive months (the “Minimum Term”), even if the Service Order Term is month-to-month.

9.3           Automatic Renewal. UNLESS AND UNTIL TERMINATED BY EITHER PARTY IN ACCORDANCE WITH THIS AGREEMENT OR CUSTOMER PROVIDES WRITTEN NOTICE OFNON-RENEWAL TO NEXHEALTH AT LEAST NINETY (90) CALENDAR DAYS PRIOR TO THE SCHEDULED END OF THE THEN-CURRENT Service Order TERM (EXCEPT THAT IF THE INITIAL Service Order TERM IS MONTH-TO-MONTH AND THE MINIMUM TERM IS COMPLETED,CUSTOMER PROVIDES WRITTEN NOTICE OF NON-RENEWAL TO NEXHEALTH AT LEAST THIRTY(30) CALENDAR DAYS PRIOR TO THE SCHEDULED END OF THE THEN-CURRENT Service Order TERM), THE Service Order TERM OF EACH Service Order SHALL AUTOMATICALLY RENEW AND BE EXTENDED UPON ITS EXPIRATION (REGARDLESS OF WHETHER PREVIOUSLY RENEWED OR EXTENDED) FOR SUCCESSIVE RENEWAL TERMS OF ONE (1) YEAR EACH (EXCEPT THAT IF THE INITIAL Service Order TERM OF THE Service Order IS LESS THAN ONE (1) YEAR, THEN UPON EXPIRATION OF THE INITIAL Service Order TERM, THE Service Order TERM SHALL RENEW AND BE EXTENDED ON A MONTH-TO-MONTH BASIS).

9.4           Amendments. NexHealth may unilaterally amend the Agreement at any time by providing thirty (30) calendar days’ advance written notice to Customer pursuant to Customer’s billing contact information provided on the Service Order or otherwise provide notice to Customer’s Users (an “Amendment”). Customer may terminate this Agreement and all Service Orders ninety (90) calendar days after the effective date of such Amendment, including but not limited to Amendments under Section 14.1 (Entire Agreement), if Customer’s notice of termination is provided no more than thirty (30) calendar days after the date NexHealth provides notice of such Amendment to Customer. Customer’s failure to provide such notice within the thirty (30) calendar day period shall constitute Customer’s consent to the Amendment.

9.5           Termination. Either Party may terminate this Agreement and all Service Orders then in force and effect(or, at such Party’s option, any individual Service Orders affected by the applicable breach), immediately and without incurring any penalty or liability, upon providing written notice of termination to the other Party, if the other Party materially breaches this Agreement and, if such breach is curable, fails to cure such breach within thirty (30) calendar days after receiving written notice reasonably describing the breach from the non-breaching Party (except that the applicable cure period shall be only fifteen (15) calendar days with respect to a breach by Customer of its payment obligations under this Agreement). Furthermore, if NexHealth and an applicable Intermediary terminate their agreement, the applicable Service Order will immediately terminate unless the Customer enters into a new Service Order directly with NexHealth or an Intermediary.

Upon any termination of this Agreement or any termination or expiration of any Service Order:(a) all Subscriptions and rights granted to Customer herein to the associated Solutions shall automatically terminate and be revoked; (b) Customer shall immediately cease use of such Solutions; and (c) each Party shall, subject to Sections 7 (Data Rights and Obligations) and 8 (Confidentiality), immediately discontinue all use of the other Party’s Confidential Information and promptly return to the other Party (or, at the other Party’s option, securely destroy) all copies of the other Party’s Confidential Information then in such Party’s possession or control (subject to NexHealth’s retention provided in Section 8.2 (Restrictions); and (d) Customer shall promptly pay to NexHealth all outstanding amounts that accrued or became due and payable under this Agreement or any applicable Service Order through the effective date of termination or expiration, plus, in the event of any termination of this Agreement other than by Customer for a material breach by NexHealth pursuant to this Section 9.5, all of the Subscription fees that were to be payable for the then-remaining or unexpired portion of the then-current Service Order Term under all Service Orders, as such Service Order Term had been scheduled immediately prior to the termination.

Upon Customer’s termination for a material breach by NexHealth pursuant to this Section 9.5, NexHealth shall refund to Customer any Subscription Fees prepaid by Customer for periods of time after the effective date of termination.

Termination of any given Service Order shall not terminate or otherwise affect any other Service Order, except for Service Orders which, pursuant to Section 5.1 (Fees), are coterminous with the terminated Service Order.

9.6           Change of Control. Customer shall immediately notify NexHealth after the closing date of any Change in Control of Customer. NexHealth may, in its sole discretion, immediately terminate this Agreement in the event of a Change in Control of the business of Customer. To exercise such termination rights, NexHealth shall give notice to Customer within forty-five (45) calendar days after receipt of Customer’s notice of Change of Control. “Change of Control” means the merger, consolidation, sale of substantially all the assets, or similar transaction or series of transactions as a result of which Customer’s shareholders or members in interest before such transaction or series of transactions, own less than fifty percent (50%) of the total number of voting securities or voting interest of the surviving entity immediately after the transaction or series of transactions.

10.           REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

10.1        Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it has the legal power and authority, and all necessary rights, to enter into this Agreement and fulfill its obligations hereunder; (b) it is duly formed, validly existing, and in good standing under the laws of the state of its formation; and (c) its execution, delivery, and performance of this Agreement shall not violate any judgment, order, or decree by which it is bound and shall not constitute a material breach or default under any contract to which it is a party.

10.2        Limited Warranties. NexHealth warrants, for Customer’s benefit alone, that throughout the applicable Service Order Term, each Solution will be without material defect or error in its principal features and functions (provided that Customer must notify NexHealth in writing of any failure to conform to the foregoing warranties within thirty (30) calendar days after, as applicable, the material defect or error was first encountered (the “Notification Period”).

10.3        Exclusive Remedies. As Customer’s sole and exclusive remedy for any failure of any Solution to conform to its respective warranty as set forth in Sections 3.1 (Support and Service Level Agreement) and 10.2 (Limited Warranties), and as NexHealth’s entire liability for any breach of those warranties, NexHealth shall, if Customer notifies NexHealth in writing and in reasonable detail of the nature and extent of such failure within the Notification Period, use commercially reasonable efforts to correct such failure, or modify the Solution to achieve material functionality within a reasonable period of time. If the foregoing remedies are not commercially reasonable or practicable, NexHealth may, in its discretion, terminate this Agreement (or any applicable Service Order or Subscription) upon providing Customer with written notice thereof, and, in such event (and as Customer’s sole and exclusive remedy and NexHealth’s entire liability), refund to Customer, in the case of breach of the warranty set forth in Section 10.2 (Limited Warranties), any Subscription fees paid by Customer with respect to the then-remaining or unexpired portion of the current Service Order Term for the non-conforming Solution. Notwithstanding the foregoing, NexHealth shall have no obligation with respect to a warranty claim under this Section 10.3 unless notified of such claim within the Notification Period.

10.4        Exclusions. The warranties in Section 10.2 (Limited Warranties) shall not apply to the extent that any failure to conform with such warranties arises or results from causes outside of NexHealth’s reasonable control, including: (a) misuse, modification, or improper configuration of a Solution by Customer (or any third party not under NexHealth’s direction or control, or using Customer’s account or IDs assigned to, or under the direction or control of, Customer or any User); (b) use of a Solution with computer software or equipment other than those recommended in NexHealth’s published specifications; (c) use of a Solution other than in accordance with this Agreement and the applicable documentation; (d) a modification made by NexHealth pursuant to Customer’s required instructions or specifications or in reliance on materials or information provided by Customer; or (e) other causes within Customer’s IT Environment or otherwise within the control of Customer or third parties, or requested by third parties, not under NexHealth’s direction or control, including but not limited to problems with, access issues with, changes to or third-party claims related to Customer’s obligations under Section 4 (Customer Responsibilities) and warranties under Section 10.1 (Mutual Representations and Warranties) by Third-Party Products (including Record System applications),or other problems, issues, or changes related to third-party software applications, hardware, network resources, Internet connectivity, or Carrier Lines which limit or terminate the ability of the Solutions to access or exchange data necessary for the proper performance of the Solutions (collectively, the “Exclusions”).

10.5        Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10.5, THE SOLUTIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” AND NEXHEALTH SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, NEXHEALTH SPECIFICALLY DISCLAIMS ALL AND ANY IMPLIED WARRANTIES OR CONDITIONS (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, DATA ACCURACY OR COMPLETENESS, SYSTEM INTEGRATION, OR INTEROPERABILITY,NONINTERFERENCE, QUALITY, VALUE, OPERABILITY OR CONDITION), AND ANY WARRANTIES THAT MIGHT OTHERWISE ARISE THROUGH USAGE OF TRADE OR CUSTOM, COURSE OF DEALING,OR COURSE OF PERFORMANCE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 10.2, AND WITHOUT LIMITING THE FOREGOING, NEXHEALTH MAKES NO WARRANTY OF ANY KIND THAT THE SOLUTIONS ARE WITHOUT DEFECT OR ERROR, WILL MEET CUSTOMER’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S SOFTWARE, SYSTEM, OR OTHER SERVICES OR THIRD-PARTY PRODUCTS,OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, WILL BE CONTINUOUSLY AVAILABLE OR APPROPRIATE FOR CUSTOMER’S PARTICULAR USE, OR THAT ANY ISSUES WHICH MAY BE CONTAINED IN THE SOLUTION CAN OR WILL BE FIXED. WITHOUT LIMITING THE FOREGOING, NEITHER NEXHEALTH NOR ITS LICENSORS, EMPLOYEES,AGENTS, DISTRIBUTORS, MARKETING PARTNERS, INTERMEDIARIES, OR AFFILIATES MAKE ANY WARRANTIES (WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY) AND EXPRESSLY DISCLAIM ALL SUCH WARRANTIES, TO THE EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SOLUTIONS, ANY RELATED DOCUMENTATION, LANGUAGE IN FORMS,NOTICES, AUTHORIZATIONS, CONSENTS, OR TEMPLATES PROVIDED IN CONNECTION WITH THE SOLUTION OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.

10.6        Data Export and Exchange Technology. Customer understands and agrees that NexHealth’s data export and exchange technology is proprietary NexHealth technology that may not rely on Record System API partnerships and NexHealth does not represent, warrant or covenant that its data export and exchange technology is approved by any Third-Party Product with which the NexHealth data export and exchange technology may interact.

10.7        Unavailability of the Services. Customer understands and agrees that, during suspension or interruption of the availability of the Solutions for any reason, Customer may not be able to obtain, access or use the Solution and Customer shall conduct its operations without such access to and/or use of the Solutions.

11.           LIMITATIONS OF LIABILITY

11.1        Limitations and Exclusion; Special Damages. EXCEPT FOR CUSTOMER’S BREACH OF OBLIGATIONS UNDER SECTIONS 1.3 (THIRD-PARTY PRODUCTS), 2 (SOLUTION), 6 (INTELLECTUAL PROPERTY RIGHTS), 7.11 (CUSTOMER DATA RESPONSIBILITY), AND 8 (CONFIDENTIALITY), NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANYTHING ELSE TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, DATA LOSS, DAMAGE OR DISCLOSURE, OR LIABILITIES TO THIRD PARTIES HOWEVER ARISING), INCURRED BY EITHER PARTY OR ANY THIRD PARTY REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

11.2        Cap on Monetary Liability. NEXHEALTH’S MAXIMUM CUMULATIVE, AGGREGATE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER DURING THE MOST RECENT THREE (3) MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN TYPES OF DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN INEFFECTIVE, OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. NO CLAIM OR ACTION MAY BE BROUGHT BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION OCCURRED, REGARDLESS OF WHETHER CUSTOMER WASOR SHOULD REASONABLY HAVE BEEN AWARE OF THE EVENT WITHIN THAT TIME PERIOD.

11.3        No Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANYTHING ELSE TO THE CONTRARY, NEXHEALTH SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY OF THE FOLLOWING: (A) FAILURE OF THE SOLUTION RESULTING FROM OR ATTRIBUTABLE TO EXCLUSIONS; (B) CUSTOMER’S INTENTIONAL MISCONDUCT OR NEGLIGENCE; OR (C) VOIDANCE OR WAIVER OF THIRD PARTY WARRANTIES OR SERVICE LEVEL AGREEMENTS OR CREDITS ARISING OUT OF RELATING TO CUSTOMER’S (OR ITS AFFILIATES’, CLIENTS’, OR USERS’) ACCESS TO OR USE OF A SOLUTION.

11.4        Device Compatibility Disclaimer. NexHealth does not warrant that the Solution is compatible with all devices and with all versions/updates of all operating systems or firmware, or that all aspects of the Solution will be continually updated on the newest technical architecture, and/or interoperate with all aspects of Customer’s Record System or other third-party software. If a Customer or Customer’s Affiliate, Client or User updates its operating system, interface, data fields or data architecture, or firmware, the version of the Solution purchased may not function properly.

11.5        Basis of the Bargain. THE PROVISIONS OF SECTIONS 10.3 (EXCLUSIVE REMEDIES), 10.4 (EXCLUSIONS), 10.5 (DISCLAIMER OF WARRANTIES), AND 11 (LIMITATIONS OF LIABILITY) OF THIS AGREEMENT ARE ALL FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND NEXHEALTH, AND NEXHEALTH WOULD NOT BE ABLE TO PROVIDE THE SOLUTIONS TO CUSTOMER WITHOUT EACH SUCH PROVISION.

11.6        Interpretation. If Applicable Law does not allow for any disclaimer, limitation of liability, release, or waiver (or any portion thereof) as set forth in this Agreement, the disclaimer, limitation of liability, release, or waiver will be deemed modified solely to the extent necessary to comply with Applicable Law.

12.           INDEMNIFICATION

12.1        Infringement. NexHealth shall indemnify Customer for any claims, actions, and other proceedings (“Claims”), and shall pay all losses, damages, liabilities, settlements, judgments, awards, interest, civil penalties, and reasonable expenses (collectively, “Losses,” and including, but not limited to, reasonable attorneys’ fees and court costs), for Losses which arise solely out of or are directly attributable to Claims brought by any third party against Customer that a Solution developed by NexHealth (excluding, for the avoidance of doubt, any Customer Data, or any other data or materials provided by, made accessible by or included at the direction of, Customer) infringes any copyright, patent, or trademark (an “IP Right”), subject to Section 11.2 (Cap on Monetary Liability). In the event of such a Claim, if NexHealth determines that an affected Solution may, or if the Solution is determined in a final, non-appealable judgment by a court of competent jurisdiction, to infringe or constitute a misappropriation of any IP Right, NexHealth will, in its discretion: (a) replace the affected Solution; (b) modify the affected Solution to render it non-infringing; or (c) terminate this Agreement or the applicable Service Order with respect to the affected Solution and refund to Customer any Subscription fees prepaid by Customer for periods of time after the effective date of termination. Notwithstanding the foregoing, NexHealth shall have no obligation to indemnify Customer from any Claim to the extent it is based upon Exclusions. If Customer becomes subject to any Claim for which NexHealth has a duty to indemnify Customer, Customer will provide NexHealth with immediate written notice, specifying the nature of the action and the total monetary amount or other relief sought. If NexHealth is obligated to indemnify under Section 12.1, NexHealth will either (1) inform Customer that NexHealth will control the defense, disposition, or settlement of the Claims regarding an IP Right at NexHealth’s own expense (in which case Customer has the option to select its own counsel at its own cost to participate in—but not control—the defense), or (2) agree to reimburse Customer for the defense, disposition, or settlement costs, up to the amount provided for in Section 11.2 (Cap on Monetary Liability), so long as NexHealth approves of Customer’s choice of counsel. Should NexHealth opt to control the defense, Customer will reasonably cooperate with NexHealth in connection with that defense.

12.2        Customer-Related Claims. Except for Claims subject to indemnification by NexHealth under Section 12.1 (Infringement), Customer shall defend, indemnify, and hold harmless NexHealth (and its officers, directors, employees, agents, and representatives) from and against any Claims, and shall pay all Losses, to the extent arising out of or related to (a) Customer’s (or that of any third party authorized by Customer or using Customer’s account or IDs assigned to, or under the direction or control of, Customer or any User) use or modification of any Solution (e.g., Claims arising from use of the Solutions for fraudulent or unauthorized purposes or from actions taken through or in connection with use of the Solutions); (b) any Customer Data (e.g., Claims for infringement, violation of privacy rights, or failure to obtain necessary consents or authorizations of third parties); (c) Customer’s breach of this Agreement (including, but not limited to, any breach of any provisions of Section 2.4 (Permitted Use), Section 2.6 (Compliance), and Section 4.2regarding Cooperation and Access); (d) any claims brought by Third Party Product vendors or others that NexHealth and/or its Solutions have interfered with or damaged their relationship with the Customer or its Affiliates, Clients or Users; or (e) third-party claims arising out of Customer’s or its Affiliates’ or Users’, or related medical professional’s use of the Solution.

12.3        Defense. With regard to any Claim subject to indemnification pursuant to this Section 12: (a) the Party seeking indemnification shall promptly notify the indemnifying Party upon becoming aware of the Claim (except that failure or delay in notifying the indemnifying Party shall reduce the indemnifying Party’s obligations under this Section 12 only to the extent the indemnifying Party is legally prejudiced as a result of the failure or delay); (b) the indemnifying Party shall promptly, at its sole expense, assume sole defense and control of such Claim upon becoming aware thereof; (c) the indemnified Party shall reasonably cooperate with the indemnifying Party, at the written request and expense of the indemnifying Party, regarding such Claim and the defense thereof; (d) the indemnified Party may participate in (but not control) the defense of any such Claim, at its expense, with counsel of its choice, but shall not settle any such Claim without the indemnifying Party’s prior written consent; and (e) the indemnifying Party shall not settle or compromise any Claim in any manner that imposes any obligations upon the indemnified Party without the prior written consent of the indemnified Party.

13.           GOVERNING LAW; ARBITRATION

13.1        Governing Law. This Agreement shall be governed by and construed under the substantive laws of the State of Utah, without regard to conflicts of laws provisions. Any legal action or proceeding arising under or relating to this Agreement permitted to be brought in court shall be brought exclusively in the state or federal courts located in Salt Lake City, Utah, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Arbitration Provision that follows in 13.2 (Arbitration Procedure) below are also governed by the Federal Arbitration Act, 9 U.S.C. § 1 et. al.

13.2        Arbitration. Except for NexHealth being able to directly seek injunctive and other equitable relief in court for infringement or misappropriation or NexHealth’s Intellectual Property or Confidential Information, any dispute arising out of relating to this Agreement or the subject matter thereof, any breach of this Agreement, including any dispute regarding the scope of this clause, and any injunctive and other equitable relief sought by Customer shall be resolved confidentially and exclusively through the following means:

13.2.1     Notice. Before filing a claim for arbitration, a Party must notify the other party of its intent to file and offer to address the issues in dispute through negotiation or mediation; no arbitration claim may be filed sooner than sixty (60) calendar days after such notice is provided.

13.2.2     Rules. The American Arbitration Association (AAA’s) rules for commercial disputes will apply to any disputes between the parties, unless specifically contradicted by any provisions of this Arbitration Provision. All hearings shall be conducted virtually (such as by a teleconference platform) or in person in Draper County, Utah.

13.2.3      Individual Arbitration and Waiver of Rights. Claims may not be aggregated with those of other persons/entities or otherwise consolidated; the parties agree herein to individual arbitration of their disputes. The Parties agree to waive any rights to assert or participate in a class action claim or to adjudication by a judge or jury.

13.2.4     Confidentiality. The Parties agree to disclose the existence of any arbitration, information about what has taken place or may take place in an arbitration, the award, or information about the outcome of this arbitration, only as needed to: (a) present claims and defenses in arbitration; (b) pursue or oppose legal remedies in court pertaining to this arbitration, including enforcement of an award; (c) comply in good faith with Applicable Law; or (d) comply with the award. In all other respects, the Parties agree to keep any arbitration strictly confidential. The Parties further reserve the right to enter into, or request from the arbitrator, a more detailed or restrictive confidentiality agreement or protective order.

13.2.5     The parties further agree:

If less than $50,000 in damages, fees, and costs are at issue, then the parties agree to a streamlined, one-day telephonic or videoconference arbitration before an arbitrator assigned by the AAA or otherwise mutually selected by the parties. The parties further agree that no written discovery or depositions will be permitted prior to the hearing, and that no more than 15 pages of legal briefing (plus exhibits) may be submitted for the arbitrator’s review by either party.  

If between $50,000 and $500,000 in damages, fees, and costs are at issue, if the parties cannot agree on an arbitration provider or individual arbitration to oversee their dispute, then the parties agree that they will ask the AAA for a list of eight potential arbitrators and will rank those arbitrators for selection of one arbitrator by AAA, which would then administer the arbitration. The arbitrator will issue a final order that includes the facts and legal authorities supporting the decision.

If more than $500,000 in damages, fees, and costs are at issue, then the parties agree that the arbitration should be conducted by a panel of three arbitrators: one arbitrator appointed by each Party and the third, who shall be the presiding arbitrator, appointed by the agreement of the Parties. The arbitrators will issue a final order that includes the facts and legal authorities supporting their decision.

Each party shall pay its own legal fees and will equally share the costs of arbitration (i.e., the arbitrator’s fees and expenses, plus any administrative fees); the only exception is that should the arbitrator find that claims were asserted in bad faith, then the arbitrator(s) has the discretion to award a party its attorneys’ fees. The arbitrator may not award damages precluded by this Agreement.

In instances where more than $50,000 in damages, fees, and costs are at issue, the arbitrator(s) lacks authority to make errors of law in rendering a decision.

14.           GENERAL PROVISIONS

14.1        Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding such subject matter, including any confidentiality or non-disclosure agreement between the Parties entered into in anticipation of this Agreement or otherwise. In addition, other than for Service Orders and Attachments, no additional terms, policies or requirements proposed by either Party (whether in electronic form or otherwise or associated with any purchase order, payment system, order documentation, or otherwise) shall be applicable to this Agreement or any Solutions, at present or in the future, without the express written agreement or consent of the other Party. Except as expressly provided for in this Agreement (see Section 9), this Agreement may not be modified or amended except by a writing signed by an authorized representative of each of the Parties.

14.2        Conflicts of Terms. In the event of any conflict between this Agreement and the Service Order or another Attachment, this Agreement shall prevail and control, except that: (a) to the extent the terms of the BAA conflict with any other terms of the Service Order or an Attachment, the BAA shall control; and (b) if the Service Order or any Attachment expressly references and modifies any provisions of this Agreement, the modified terms shall control solely with respect to such Service Order or Attachment and the subject matter thereof.

14.3        Severability. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement (or portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, such provision (or portion thereof) shall be deemed severed from this Agreement and all other provisions of this Agreement shall remain in full force and effect.

14.4        Survival. The provisions of this Agreement, and the rights, duties, and obligations of the Parties hereunder, which by their nature may be reasonably inferred to have been intended to survive termination, expiration, cancellation, or completion of this Agreement (including those set forth in Sections 1.3 (Third-Party Products), 2.5 (Prohibited Conduct), 2.6 (Compliance), 5 (Fees and Payments), 6 (Intellectual Property), 7 (Data Rights and Obligations), 8 (Confidentiality),10.3 (Exclusive Remedies), 10.4 (Exclusions), 10.5 (Disclaimer of Warranties), 11 (Limitations of Liability), 12 (Indemnification), 13 (Governing Law; Arbitration), and 14 (General Provisions) will survive and continue as valid and enforceable rights, duties, and obligations following termination without limitation as to time.

14.5        No Waiver. The failure by either Party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any right or remedy provided herein, shall not constitute a waiver of such provision, right, or remedy or in any way affect the validity of this Agreement. Any waiver of any by either Party shall not be deemed a continuing waiver and shall apply only to the instance to which such waiver is directed. Any waiver must be in a writing signed by an authorized representative of the waiving party. Other than as expressly otherwise provided in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other rights or remedies of each Party hereunder or at law or in equity.

14.6        Assignment. Customer may not assign or otherwise transfer this Agreement or any Service Order executed hereunder, either voluntarily or by operation of law, without the prior written consent of NexHealth (such consent not to be unreasonably withheld), except that Customer may assign this Agreement without NexHealth’s consent in the event of a sale of all or substantially all of its assets or in the event of a merger, change of control, corporate reorganization, or business consolidation of Customer (but excluding any assignment by Customer to a competitor of NexHealth, broadly defined). For avoidance of doubt, in the event of a permitted assignment by Customer of this Agreement, the Subscriptions purchased by Customer hereunder shall continue to be subject to the Usage Parameters of the applicable Service Order (including, but not limited to, any Usage Parameter limits with respect to numbers of locations or types and numbers of Subscriptions or Users, or, if limits on types or numbers of locations, Subscriptions, or Users are not provided in the Service Order, or if the Service Order provides for or permits an unlimited number of locations, Subscriptions, or Users, then restrictions as to use by the applicable specific business lines, groups, divisions, departments, or other organizational units of what had been Customer’s organization, as applicable to the Service Order, shall continue to apply). NexHealth may use such third-party subcontractors as it deems necessary or appropriate from time to time in fulfilling its obligations under this Agreement, provided that NexHealth shall remain responsible for fulfilling all of its obligations under this Agreement and for the actions and omissions of such subcontractors, as if they were NexHealth’s employees. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

14.7        Force Majeure. Except for payment obligations hereunder, and notwithstanding anything in this Agreement to the contrary, neither Party shall be liable, or deemed to be in default, for any delay or failure in its performance hereunder, to the extent such delay or failure results from causes beyond the Party’s reasonable control (any such cause, a “Force Majeure”), including, but not limited to, acts of God, terrorism, war, civil insurrection, strikes or other organized labor interruption, epidemics, pandemics, or other threats of serious disease or illness (as determined by an authorized state governmental agency or official or the Centers for Disease Control and Prevention), interruptions or failures of third-party utilities (e.g., electricity providers) or third-party communications providers or the Internet, fire, explosions, floods, or other natural disasters, acts or omissions of the other Party or third parties not under the direction or control of such Party, restrictions or changes in Third-Party Products or their license agreements (including, without limitation, Record System applications) which result in the failure or interruption of the Solutions’ ability to access the Third-Party Products and/or data stored within such Third-Party Products which is necessary for NexHealth’s performance under this Agreement, or any similar cause. NexHealth may terminate this Agreement and all Service Orders then in force and effect (or any Service Orders materially affected by the Force Majeure), upon providing written notice of termination to the other Party, and without penalty or incurring liability, if either Party’s performance under this Agreement has been suspended or materially delayed, impeded, or interrupted by a Force Majeure for more than thirty (30) consecutive calendar days and such performance has then not yet substantially resumed.  Upon any such termination of this Agreement or any Service Order, NexHealth shall promptly refund to Customer any fees prepaid by Customer for periods of time after the effective date of termination.

14.8        No Third-Party Benefit. This 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 on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

14.9        Notice. Except as otherwise provided in this Agreement, and other than for routine administrative communications, which may be exchanged by the Parties via email or other agreed upon means, all notices, consents, and approvals by either Party under this Agreement shall be in writing, shall be sent to: NexHealth’s physical address for notices as provided below in this Section 14.9, and its email address for notices is legal@nexhealth.com and (b) Customer’s physical and email addresses for notices are those associated with its Service Order(s). Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply and (2) any notice for an indemnifiable claim or arbitration must be sent by courier or mail pursuant to clause (i) or (ii)). Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.

NexHealth
Attn: Legal
12936 Frontrunner Blvd
Suite 525
Draper, UT 84020

14.10       Independent Contractors. The Parties are independent contractors with respect to this Agreement and each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

14.11       Regulatory Access to Books and Records. NexHealth agrees to make, keep and maintain such records as NexHealth determines, in its sole discretion, are appropriate under this Agreement. NexHealth will provide access to such records as required by Applicable Law including, if required, to the Secretary of HHS, the Comptroller General of the United States, or their respective designees or a duly authorized representative of either of them.

14.12       U.S. Government Rights. The Solutions, and any documentation relating to any Solutions, constitute commercial technical data, computer databases, commercial computer products, or commercial computer product documentation, as applicable, which were developed exclusively at private expense.  U.S. government rights to use, modify, reproduce, release, perform, display, or disclose any such technical data, computer databases, commercial computer products, and commercial computer product documentation are subject to the limited rights restrictions of DFARS 252,2270701(b)(3) (June 1995) and the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements, and the rights restrictions of FAR 52.227-14 (May 2014) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements, and any other relevant rights restrictions in federal regulations.  U.S. government users of the Solution and related documentation acquire only those rights expressly granted to Customer in this Agreement.

14.13       Publicity. Neither Party will use the tradename, trademark, approved logo or other marks of the other Party (collectively, “Marks”) without the prior written consent of the other Party, except as follows: (a) as required by Applicable Law; (b) use in connection with any financing transaction, sale or due diligence inquiry or legal/accounting or regulatory requirement; or (c) as expressly permitted in this Agreement, including without limitation any Attachments. Customer grants NexHealth a royalty free, fully paid up and worldwide license to use Customer’s Marks on NexHealth’s website and in marketing materials to indicate Customer’s status as a customer of NexHealth. Neither Party shall unreasonably withhold consent in the event the other Party requests consent to use the other Party’s Mark.

14.14       Execution. This Agreement, and any Service Order governed by this Agreement, may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute the same agreement. Each Party agrees to be bound by its digital or electronic signature with respect to this Agreement or any Service Order or Attachment, whether transmitted in the form of an electronically scanned image (e.g., in .pdf form) or effected through means of e-signature technology (e.g., DocuSign technology), and each Party agrees that it shall accept as valid the signature of the other Party that is transmitted in such a manner.

14.15       Miscellaneous. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. The term “person” includes individuals, corporations, partnerships, trusts, other legal entities, organizations and associations, regardless of whether for-profit or non-profit, and any government or governmental agency or authority. The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written,” if such word does not already appear. References to “this Agreement” or its terms shall be interpreted to refer to the terms of this Agreement, the Service Order and any other applicable Attachment. All currency amounts stated in any Attachment or otherwise agreed to by the Parties shall be in U.S. dollars, unless expressly otherwise stated in a Service Order. The headings or captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement.

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