Multi-Platform Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS THE LICENSE GRANT AND USE BY CLIENT OF MEDISKED SOFTWARE AS A SERVICE (“SaaS”) PLATFORMS AND SERVICES, WHICH CAN INCLUDE MEDISKED COORDINATE – CARE MANAGEMENT PLATFORM (“COORDINATE”), MEDISKED CONNECT – AGENCY MANAGEMENT PLATFORM (“CONNECT”), MEDISKED CONNECT EXCHANGE – MULTI-AGENCY BUSINESS INTELLIGENCE PLATFORM (“CONNECT EXCHANGE”), AND MEDISKED PERSON-CENTERED PLATFORM (“PORTAL”). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT AND THE SPECIFIC MEDISKED PLATFORM(S) TO BE USED, CLIENT ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CLIENT REPRESENTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Client may not access the Services if Client is a direct competitor of MediSked, LLC, except with prior written consent from MediSked, LLC.

This Agreement is effective between Client and MediSked, LLC as of the date of Client accepting this Agreement as specified in the Order Form.

Recitals

WHEREAS, Client requires access to MediSked, LLC’s “software as a service” (“the SaaS,” as further described herein) Internet application on MediSked, LLC’s application servers;

WHEREAS, Client requires Internet application hosting, backups, and related services (the “Hosting Service”);

WHEREAS, Client requires technical support, troubleshooting, upgrades, and updates (the “Support Service”);

WHEREAS, Client requested a proposal from MediSked, LLC for such SaaS, Hosting Service and Support Service collectively the “Services”;

WHEREAS, MediSked, LLC has experience and expertise in the business of providing the Services, including the design, selection, and implementation of data schema, message formats, data feed rules, alters and reporting, and in the design, coding and testing of software in connection therewith;

WHEREAS, MediSked, LLC submitted a proposal to Client to perform such Services on behalf of Client;

WHEREAS, based on MediSked, LLC’s superior knowledge and experience relating to such Services, Client has selected MediSked, LLC to manage and provide the Services;

WHEREAS, MediSked, LLC wishes to perform the Services and acknowledges that the successful performance of the Services and that the security and availability of Client data (“Client Content,” as further described herein) are critical to the operation of Client’s business;

WHEREAS, MediSked, LLC has agreed to provide the Services to Client, all on the terms and conditions set forth herein; and,

WHEREAS, Client has executed documents for placing orders hereunder, including addenda and supplements thereto (“Order Form”) identifying the MediSked, LLC platform(s) to be licensed to Client, and an agreed upon Scope of Work setting forth the boundaries and specifics of Client’s engagement with MediSked, LLC, are deemed incorporated herein by reference to this agreement.

NOW, THEREFORE, MediSked, LLC and Client agree as follows:

1. Grant of License; Activation

1.1       Subject to the terms and conditions herein, MediSked, LLC hereby grants Client a nonexclusive, non‑transferable and non-sub-licensable license (the “License”) to (i) access and utilize the SaaS on MediSked, LLC’s application servers over the Internet, and (ii) transmit data related to Client’s use of the SaaS as necessary to create the database related to use of the SaaS by Client (the “Client Content”) over the Internet, and to manage data and communication between and among Client data sources identified in the Scope of Work. The named data sources and authorized personnel are hereafter referred to as “Users”, the number and identity of which may be amended from time to time by mutual agreement, not to be unreasonably withheld.

1.2       Activation shall be defined as (i) installation of the most recent version of the SaaS on MediSked, LLC’s application server, and (ii) providing Client with access thereto so that it can be utilized by Client in accordance with the terms of this Agreement.

1.3       For instances of Connect, Coordinate, and Portal, MediSked, LLC shall complete activation within fifteen (15) days of commencement of this Agreement.

1.4       For instances of Connect Exchange, MediSked, LLC shall complete activation of the Connect Exchange Data Warehouse service for Client within one (1) month of execution of this Agreement.

1.5       Client acknowledges that its purchase of Services from MediSked, LLC is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MediSked, LLC regarding future functionality or features, unless specifically described in the Order Form or Scope of Work.

2. Access and Use

2.1       Client will have access to the SaaS for the purpose of using the SaaS for its intended purpose and in accordance with the specifications set forth in any documentation relating to the SaaS provided by MediSked, LLC.

2.2       Client, or its agents or subcontractors will use the SaaS only for its internal business operations and communications between and among itself and the Users, and will not permit the SaaS to be used by or for the benefit of anyone other than Client or the Users, and its agents or subcontractors. Client will not have the right to re-license or sell rights to access and/or use the SaaS or to transfer or assign rights to access or use the SaaS, except as expressly provided herein. Client shall not, nor shall it permit its Users to, (i) disassemble, decompile, reverse engineer, copy, modify, transcribe, store, translate, adapt, modify, sell, lease, sublicense, or otherwise transfer, make available or distribute any part of or right to use the Services, or its applicable documentation, in whole or in part, or (ii) use The Services for the benefit of a third party or to operate it in a bureau capacity. Client agrees to use the SaaS in a manner that complies with all applicable laws, including but not limited to laws regarding the use and/or protection of intellectual property and copyrights. MediSked, LLC expressly reserves all rights not expressly granted to Client herein.

2.3       Client will not: (i) transmit or share identification or password codes to or with persons other than authorized users under the terms hereof, (ii) permit such identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users under the terms hereof, or (iii) permit access to the SaaS through a single identification or password code being made available to multiple users on any network.

2.4       Client shall be solely responsible for assigning and ensuring the security and confidentiality of all usernames and passwords with respect to access to and use of the SaaS by its authorized Users. Client acknowledges that it will be fully responsible for all liabilities incurred through the use of any username with respect to the SaaS assigned by Client and that any transactions on the SaaS under a username assigned by Client will be deemed to have been performed by Client. Client shall notify MediSked, LLC immediately of any unauthorized uses of any username. Use of any username or password assigned by Client other than as provided in this Agreement shall constitute a breach of this Agreement by Client.

2.5       Additional terms and conditions (“MediSked ASP Terms and Conditions of Use Agreement”) may appear on the user login web page. MediSked, LLC shall provide a standard ASP Terms and Condition of Use Agreement, however Client may provide their own terms and conditions of use and/or update the MediSked ASP Terms and Conditions of Use Agreement, subject to approval by MediSked, LLC. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

2.6       MediSked will provide Hosting Services with appropriate hosting technology and storage on the database application servers for Client’s use of SaaS and storage of Client Data in accordance with Hosting Level as indicated in the Order Form and specified in Section 6.1.1. Storage media will meet then-current minimum standards throughout the term, with technology and capacity updated as reasonably necessary to provide Services to Client. Additional storage may be purchased at market rates should the need arise. MediSked will provide written notice to Client within ten (10) business days of Client using at least seventy percent (70%) of allotted storage. If Client’s use exceeds the base storage space allotted, Client will pay a monthly rate of $10 per gigabyte over the allotted storage. Such incremental fees will be calculated on the average monthly storage overage and invoiced monthly.

2.6.1    Storage Allocation for MediSked Platforms and Services

MediSked will provide one (1) gigabyte of storage on the database application servers per individual member record. The actual storage allocation allotment will be counted based on the aggregate number of member records, and not a per-individual basis.

2.7       MediSked, LLC will maintain a secure certificate (256 bit or higher) encryption for the Client’s site. The parties acknowledge that the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”) requires the implementation of measures to protect the security of electronic protected health information that may be maintained or transmitted by MediSked, LLC during the course of its provision of the Services. Notwithstanding anything to the contrary, MediSked, LLC warrants and covenants that, at no additional cost to the Client, any of Services containing Client Content will have all technical security features required by HIPAA’s security regulations, as amended or changed by HITECH. All technical security features of the Services shall meet the minimum standards set forth in HIPAA’s security regulations, as amended or changed by HITECH. Without limiting the foregoing, MediSked, LLC shall maintain the Services in accordance with industry best practices and commercial reasonability with regard to security and privacy protection, and all Client Content shall be encrypted at all times, both at rest and in transit. Throughout the term of this Agreement, at no additional charge to Client, MediSked, LLC represents, warrants and covenants that the Client Content stored by MediSked, LLC shall be stored in a secure manner and that it shall backup a copy of all Client Content to a remote disaster recovery data center maintained by MediSked, LLC to enable the restoration of data in the event of a loss of data.

2.8       MediSked, LLC will register and maintain one (1) unique domain name for Client to access site unless otherwise specified in Order Form.

2.9       Equipment. The Services will be developed to be supported for use on standard internet browsers and hardware. Client agrees to use the Services from the regularly updated list of supported internet browsers and equipment. The list is available at Web Link #1 in Section 26 of this Agreement. Client acknowledges and agrees that use of the Service is dependent upon Client’s access to telecommunications and Internet services. Client will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and computer operating software required to access and use SaaS. MediSked will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising solely from Client’s use of such telecommunications and Internet services other than as intended herein.

2.10     Mobile Support. Mobile/Web Support. The Services will be developed to be supported for use on standard mobile internet browsers and hardware. Client agrees to use the Services from the regularly updated list of supported internet browsers and equipment. The list is available at Web Link #1 in Section 26 of this Agreement.

2.11     Client Content. Client acknowledges that MediSked, LLC exercises no control whatsoever over any data or communications entered, sent or managed by Users while accessing the Service (the “Client Content”) and that Client is solely responsible for the Client Content. Client covenants that at no time shall Client Content contain (i) any defamatory, (ii) any obscene, pornographic or otherwise unlawful information, data or material, provision of the Service or (iii) any information whose use in connection with the Services infringes the intellectual property rights of any third parties and shall indemnify, defend, and hold MediSked, LLC harmless from and against any and all losses, liabilities, claims, costs, expenses and damages, including reasonable attorneys’ fees, resulting from, arising out of, or in any way connected with such content to the extent that the information was entered, sent, received, created and posted on Client’s MediSked Platform installation. In the event that Client requests MediSked, LLC (and MediSked, LLC agrees) to enter and/or process information on Client’s behalf, Client shall be responsible for verifying all such information promptly after MediSked, LLC’s processing and Client acknowledges that MediSked, LLC shall not be responsible for the accuracy (or inaccuracy) of any such information or any issues that may arise out of its processing of such information. In the event that inaccurate data is processed by MediSked, LLC, MediSked, LLC’s sole liability, and Client’s exclusive remedy, shall be for MediSked, LLC to make a good faith effort to correct the affected data or remove the inaccurate information from its database. MediSked, LLC is under no obligation to review the Client Content for accuracy, potential liability or for any other reason. All Client Content will be stored in the United States, unless consent to store it outside the United States is given in writing by Client.

2.12     Data Retention. Client agrees that MediSked, LLC obligation to keep or maintain any Client Content shall not extend beyond sixty (60) days after the expiration or termination of this Agreement; provided, however, MediSked, LLC will provide Client with a digital copy of the Client Content as set forth in Section 7.5.1.

2.13     Compliance with Laws. Client shall not use or permit the Service to be used (i) in violation of any applicable national, state, or local law or regulation, including without limitation any laws governing access to the Service or governing the Client Content; or (ii) in ways that infringe the rights of others, or interfere with other users’ use of the Service. MediSked, LLC reserves the right to suspend the Service (or any portion thereof) immediately and without notice in the event that MediSked, LLC believes that the Client Content or Client’s or any of the Users’ use of the Service is in violation of this Agreement.

3. Price; Payment

3.1       Client shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in the Order Form,

3.1.1    Fees are based on services purchased and not actual usage.

3.1.2    Payment obligations are non-cancelable, and fees paid are non-refundable.

3.2       If MediSked, LLC is required to pay or collect any federal state, local or value added tax on any fees charged under this Agreement, or any similar taxes or duties levied by any governmental authority, excluding taxes levied on MediSked, LLC’s net income, then such taxes and/or duties will be billed and paid by Client immediately upon receipt of MediSked, LLC’s invoice and supporting documentation for the taxes or duties charged.

3.3       All undisputed invoice terms are due thirty (30) days on receipt unless otherwise specified on Order Form.

3.4       Price Adjustments. After the initial Contract End Date as listed in the Order Form, MediSked, LLC reserves the right to increase the Client’s monthly Recurring Fees up to once annually, with this increase not exceeding five percent (5%). This limit will remain effective for the first three years from the date of this Agreement unless indicated otherwise in the Order Form.

3.5       Client is responsible for cost of MediSked, LLC’s travel, lodging, and meals, as well as expenses incurred due to changes in travel plans requested by Client, which costs will be billed to Client upon its request of onsite training, Hosting Service implementation, development, or support.

3.6       All undisputed payments not made within thirty (30) days after they become past due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law.

3.7       Client acknowledges and agrees that Client will not disclose MediSked, LLC pricing structure or any compensation given to MediSked, LLC for services provided to Client by MediSked, LLC to any third parties, except as required by law, or to its representatives with a need to know, subject to confidentiality terms reasonably acceptable to Client.

4. Ownership of Intellectual Property

Title to any proprietary rights in the SaaS or MediSked, LLC’s web site will remain in and be the sole and exclusive property of MediSked, LLC. Client will be the owner of all Client Content and any other content created and posted by Client on the SaaS.

4.1       Ownership of SaaS. Except for the express licenses granted to Client in Section 1 hereof, all right, title and interest to the SaaS, the software applications and websites necessary to provide the SaaS, any applicable software or SaaS documentation and any other information or materials provided to Client by MediSked, LLC under this Activation Agreement, including, without limitation, all intellectual property rights therein, shall at all times remain solely with MediSked, LLC and/or its MediSked, LLCs. Except as expressly permitted under this Agreement, Client shall not, nor shall it permit its Users to, (i) disassemble, decompile, reverse engineer, copy, modify, transcribe, store, translate, sell, lease, sublicense, or otherwise transfer, make available or distribute any of the SaaS, the Website, or applicable documentation, in whole or in part, or (ii) use the SaaS for the benefit of a third party or to operate it in bureau capacity.

4.2       Ownership of Client Content. As between Client and MediSked, LLC, all right, title and interest to the Client Content shall at all times remain solely with Client; provided, however, MediSked, LLC may copy, display, distribute and use the Client Content to the extent necessary for MediSked, LLC to perform its obligations under this Agreement.

4.2.1    MediSked, LLC shall, in compliance with law including but not limited to HIPAA and HITECH, have the right to utilize data capture and analysis tools, and other similar tools, to extract, compile and analyze any data or information in a format that complies with de-identification rules under HIPAA, resulting from Client’s and User’s access and use of the SaaS (“Blind Data”). To the extent that any Blind Data is collected by MediSked, LLC, such Blind Data shall be solely owned by MediSked, LLC and may be used by MediSked, LLC for any lawful business purpose without a duty of accounting to Client, and subject to the following conditions of use:

4.2.1.1 Internal Use of Blind Data. MediSked, LLC reserves the right to capture, analyze, extract, compile, and make use of internally all Blind Data, in compliance with law including but not limited to HIPAA and HITECH. MediSked, LLC internal use of Blind Data will include but is not limited to the capture and analysis of such data for the purposes of process, product, platform, or feature enhancements and improvements.

4.2.1.2 External Use of Blind Data. To the extent that Blind Data is captured and disseminated externally, MediSked, LLC shall use Blind Data only in an aggregated form, without identifying the source of the Blind Data. Without assuming any obligations or liabilities of Client, MediSked, LLC agrees to use commercially reasonable efforts to comply with any applicable U.S. laws and regulations respecting the dissemination and use of such Blind Data.

5. Technical Support, Updates, and Upgrades

5.1       MediSked, LLC shall make most recently revised Application manuals available to Client.

5.2       MediSked, LLC shall make most recently revised Knowledge Base content available to Client.

5.3       MediSked, LLC shall make most recently revised Embedded Recorded Trainings available to Client.

5.4       A support ticket shall be defined as any request related to a single issue from Client to provide assistance, via email and/or telephone, regarding the use and/or functionality of the Application.

5.4.1    Client may request to open 15 (fifteen) support tickets in a given calendar month without incurring additional costs, unless otherwise specified on the Order Form.

5.4.2    If Client’s use exceeds the quantity allotted, Client will pay a rate of $25 per ticket over the allotted quantity. Such incremental fees will be calculated on the monthly support ticket overage and invoiced monthly.

5.4.3    Client shall provide and maintain a current list of no more than 5 (five) employees that may contact MediSked Support on behalf of Client, unless otherwise specified on Order Form.

5.5       MediSked, LLC shall provide a support help desk to assist with provision of solutions and/or workarounds to each support ticket.

5.6       Help Desk shall be available during “business hours,” defined as Monday to Friday, between the hours of 8:00 am and 5:00 pm in the time zone of client address specified on Order Form and Help Desk shall be closed on legal holidays. (A list of legal holidays may be found at Web Link #2 in Section 26 of this Agreement.)

5.6.1    MediSked, LLC shall respond to email support tickets within 4 (four) business hours.

5.6.2    MediSked, LLC shall respond to telephone support tickets within 1 (one) business day.

5.7       Client acknowledges that Application is updated from time to time by MediSked, LLC. MediSked, LLC will make best efforts to communicate updates to Client. Client shall receive all standard updates and upgrades relevant to the License.

5.8       Updates shall be defined as new features, enhancements, patches, upgrades, and service packs applied to the Application.

5.9       MediSked, LLC will use commercially reasonably efforts to ensure that updates are tested, and without defect, subject to Section 8 (Warranty and Disclaimer) herein.

5.10     MediSked, LLC shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by the Client.

6. SaaS Availability

6.1       Client acknowledges that the data centers may be owned by third parties. MediSked, LLC shall use reasonable efforts to endeavor to have the Service available based on the Hosting Service Level indicated in the Order Form, as specified in section 6.1.1 of this Agreement (measured monthly) except: (i) planned interruptions outside of normal business hours, for which MediSked, LLC has given Client at least eight (8) hours advance notice; and (ii) unplanned interruptions arising from circumstances beyond MediSked, LLC reasonable control, including, without limitation, Force Majeure, computer hardware, software, network, or telecommunications failures or delays involving hardware or software not within MediSked, LLC’s possession or reasonable control, network intrusions and denial of service attacks, provided that MediSked, LLC will use best practices to prevent such network intrusions and denial of service attacks.

6.1.1    Hosting Service Level Uptime Availability Guarantee

Basic HostingMediSked, LLC shall use reasonable efforts to endeavor to have the Service available 99.5% of the time (measured monthly)
Standard HostingMediSked, LLC shall use reasonable efforts to endeavor to have the Service available 99.7% of the time (measured monthly)
Enterprise HostingMediSked, LLC shall use reasonable efforts to endeavor to have the Service available 99.9% of the time (measured monthly)

6.1.2    Hosting Service Level Uptime Availability Guarantee for Connect Exchange

Connect Exchange – Enterprise HostingMediSked, LLC shall use reasonable efforts to endeavor to have the Service available 99.9% of the time (measured monthly)

6.1.3    MediSked, LLC shall maintain HIPAA/HITECH Business Associate Agreement with each third party data center owner(s).

6.2       Network Availability. For each period of Network Downtime in excess of four (4) consecutive hours experienced by Client in any calendar month, Client shall receive a one (1) day Service Credit. Client shall receive a one (1) day Service Credit for each additional four (4) consecutive hour increment that any period of Network Downtime continues over such initial four (4) consecutive hour duration unless described in Section 6.1(i).

6.3       Latency. The average monthly Latency (delay) over network connections from Data Centers to the Internet will not exceed 85 milliseconds round-trip. Remedy: If Latency from Data Centers to the Internet, as applicable, for a calendar month exceeds the time frame set forth above, MediSked, LLC will issue a credit to Client equal to one day’s worth of the Recurring Hosting Fee paid by Client for such month.

6.4       Packet Loss. The average monthly Packet Loss over network connections Data Centers to the Internet will not exceed 0.5%. Remedy: If Packet Loss from Data Centers to the Internet exceeds 0.5% during a calendar month, MediSked, LLC will issue a credit to Client equal to one day’s worth of the Recurring Hosting Fee paid by Client for such month unless described in 6.1(i). The terms of this Agreement relating to Packet Loss will take effect the first full calendar month after Client’s first use of the Service.

6.5       Backup Policy and Restore Guarantee. MediSked, LLC will perform full database backups seven (7) days per week, at a frequency based on the Hosting Service Level indicated in the Order Form, as specified in section 6.5.1 of this Agreement. In the event of data corruption or server failure, MediSked, LLC will restore most recent database backup. If a database file or set of database files is not recoverable within 12 hours of the initial request, MediSked, LLC will refund the Client 5% (five percent) of the Recurring Hosting Fee for each GB (Gigabyte) of non-restorable data, up to 100% (one hundred percent) of the Recurring Hosting Fee paid by Client for such month.

6.5.1    Daily Database Backup Frequency for Connect/Coordinate/Portal

Basic HostingMediSked, LLC will perform full database backups at a minimum of one (1) time per day, seven (7) per week.
Standard HostingMediSked, LLC will perform full database backups at a minimum of two (2) times per day, seven (7) days per week.
Enterprise HostingMediSked, LLC will perform full database backups at a minimum of three (3) times per day, seven (7) days per week.

6.5.2    Daily Database Backup Frequency for Connect Exchange

Connect Exchange – Enterprise HostingMediSked, LLC will perform full database backups at a minimum of three (3) times per day, seven (7) days per week.

6.6       Remedy Requirements. Upon Client’s written request to MediSked, LLC made within 30 business days of the last day of the month in which the relevant Service Level was not met, Client shall be entitled to Service Credits. A credit shall be applied only to the month in which the event giving rise to the credit occurred. The maximum Service Level credits issued in any one calendar month shall not exceed 100% of the Recurring Hosting Fees for such month. Client will not qualify for Service Level credits if Client’s account with MediSked, LLC is past due.

6.7       Definitions:

6.7.1    “Network Downtime” means an instance in which no traffic can pass in or out of the Selected Point of Penetration (POP) through which Client connects to the Hosting Service for more than 15 consecutive minutes.

6.7.2    “Latency” means the average time required for round-trip packet transfers between Selected POPs on the selected portions of Hosting Service during a calendar month, as measured by MediSked, LLC.

6.7.3    “Packet Loss” means the average percentage of IP packets transmitted between Selected POPs during a calendar month that are not successfully delivered, as measured by MediSked, LLC.

7. SaaS Deactivation; Term; Termination

7.1       Term. This Agreement shall commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, this Agreement shall automatically renew for additional periods equal to one (1) month.

7.2       Termination for Cause. This Agreement may be terminated for Cause in the event of either of the following (either of which is hereby defined as “Cause”):

7.2.1    If Client fails to make any payment due hereunder, and fails to cure such breach within sixty (60) days after being given notice by MediSked, LLC, then MediSked, LLC may immediately and without further notice terminate this Agreement and declare all sums due, and to become due hereunder, immediately payable. Host may choose (at its discretion) not to exercise its rights in this subsection if Client is disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.

7.2.2    Except as set forth in subsection 7.2.1 above, either party may terminate this Agreement immediately (a) in the event the other party commits a material breach of this Agreement and such breach continues for a period of fifteen (15) days following written notice of such breach being given to the breaching party; or (b) if the other party shall make an assignment for the benefit of its creditors, or any voluntary or involuntary proceeding in bankruptcy, reorganization or arrangement for the appointment of a receiver or trustee to take possession of the other party’s assets or any other proceeding under any law for relief from creditors shall be instituted by or against the other party (and such proceeding is not dismissed within sixty (60) days from the filing date).

7.3       Termination Without Cause. Either party may terminate without cause by providing ninety (90) days written notice to the other party, and such termination shall be effective the last day of the subsequent month from the date of receipt of notice. Client is responsible for payment of all fees through to the end date designated in the Order Form or the end of ninety (90) days, whichever is greater.

7.4       Suspension of Service and Acceleration. If any amount owed by Client under this or any other agreement for MediSked, LLC services is thirty (30) or more days overdue, MediSked, LLC may, without limiting its other rights and remedies herein, accelerate Client’s unpaid fee obligation under such agreements so that all such obligations become immediately due and payable, and suspend Services to Client until such amounts are paid in full. MediSked, LLC will give Client ten (10) days’ prior notice that Client’s account is overdue, in accordance with Section 13 (Notice), before Services are suspended.

7.5       Effect of Termination. Upon termination of this Agreement, all rights granted to Client under this Agreement shall terminate, each party shall return all copies of the other party’s Confidential Information (as defined in Section 9.1 of this Agreement), and Client shall pay MediSked, LLC for the Services through the effective date of termination. Additionally, upon Client’s written request, MediSked, LLC shall deliver to Client, at Client’s expense, a copy of the then-most recent data extract of the Client Content in a media and format mutually agreeable to both MediSked, LLC and Client. MediSked, LLC will deliver such extract to Client within thirty (30) days of its receipt of such a request. Expiration or termination of this Agreement shall not affect obligations that accrued prior to the effective date of termination of this Agreement. The obligations of the parties under Sections 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 23, 24, and 27 shall survive termination of this Agreement.

7.5.1    In the event of termination, data extract returned to Client will be in a form that is reasonably “usable” by Client. Usable shall be defined as received in a format that can be opened on most PCs (i.e. Excel, Flat File, SQL Server Database, Access Database) and the data may be viewed, printed, and manipulated by Client or parties authorized by Client, outside of MediSked, LLC.

7.5.1.1 Extraction options will be quoted and performed for a fee of one hundred and fifty ($150) dollars per hour plus shipping and storage media costs.

8. SaaS Warranty and Disclaimer

8.1       Mutual. Each party represents and warrants to the other that it has the full right, power and authority to enter into this Agreement.

8.2       SaaS Warranty. MediSked, LLC warrants that the SaaS conforms with generally prevailing industry standards and its performances will be monitored and maintained by appropriately skilled and licensed (if necessary) personnel. Client must report any defects in the SaaS to MediSked, LLC in writing within thirty (30) days of Client’s discovery of any such defect

8.3       DISCLAIMER. THE WARRANTIES STATED IN THIS SECTION 8 ARE THE ONLY WARRANTIES MADE BY THE PARTIES WITH RESPECT TO ACTIVITIES UNDER THE AGREEMENT. THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. MEDISKED, LLC DOES NOT WARRANT THAT CLIENT’S USE OF THE SAAS SHALL BE UNINTERRUPTED OR ERROR FREE. NO REPRESENTATION OR STATEMENT SHALL BE BINDING UPON MEDISKED, LLC WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AS A WARRANTY OR OTHERWISE UNLESS EXPRESSLY CONTAINED IN THIS AGREEMENT.

CLIENT ACKNOWLEDGES THAT ITS USE OF THE SAAS IS ENTIRELY AT ITS OWN RISK. CLIENT AGREES THAT MEDISKED, LLC WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (i) USE OF OR INABILITY TO USE THE SAAS, (ii) INTERRUPTION OF BUSINESS, (iii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE WEBSITE OR THE SAAS, (iv) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION OR (v) DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY MEDICAL PAYMENT PROCESSORS.

8.4       Compliance with Law. MediSked, LLC agrees that it and its Services shall comply with all applicable federal and state laws, rules and regulations (collectively, “Applicable Laws and Regulations”). Throughout the Term of the Agreement, MediSked, LLC agrees to make modifications to the Services at no additional charge to the Client to ensure the Services conform to all Applicable Laws and Regulations or, if MediSked, LLC determines in good faith that such changes would not be commercially feasible, MediSked, LLC may terminate this Agreement as provided in Section 7.

8.5       Documentation Warranty. MediSked, LLC warrants that throughout the term of this Agreement, the Services provided hereunder will perform substantially in accordance with the documentation and the warranties contained in this Agreement.

8.6       SaaS Availability Warranty. MediSked, LLC warrants that throughout the term of this Agreement, the Services provided hereunder will meet the availability levels described further in Section 6 above, subject to such exceptions as permitted under the terms of this Agreement.

9. Confidentiality

9.1       Definition. By virtue of this Agreement, each of the parties may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information shall include the intellectual property of a party and its technical information, Client lists, business plans, organization policies, software, in both source code and object code forms, concepts, design architectures, specifications, processes, techniques, algorithms, know-how, source materials, training materials, maintenance information and materials, and other information that is labeled or otherwise designated as confidential or that by its nature would reasonably be expected to be kept confidential. Client acknowledges that the SaaS and other content provided by MediSked, LLC in connection with operation of the Services and maintained on MediSked, LLC’s application server as part of the Website (as both are defined in the Terms) embody logic, design and coding methodology that constitute valuable confidential information that is proprietary to MediSked, LLC. Client will safeguard the right to access the Services and the Website (as both are defined in the Terms) and the SaaS and other software installed on MediSked, LLC’s application server using the same standard of care that Client uses for its own confidential materials. MediSked, LLC’s Confidential Information shall include, without limitation, the SaaS, and any applicable documentation, specifications, software embedded as part of the SaaS, the Website, assigned by Client and communicated to MediSked, LLC, as well as MediSked, LLC’s price lists. Client’s Confidential Information shall include the Client Content. In addition to the terms of this Agreement, the Business Associate Agreement, and all applicable HIPAA and HITECH laws and regulations shall regulate any personal health information exchanged between the parties through the Service.

9.2       Exclusions. Notwithstanding the previous paragraph, a party’s Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party not bound by a duty of non-disclosure; or (iv) is independently developed by the other party without access to or use of the Confidential Information.

9.3       Nondisclosure. The parties agree, both during the Term of this Agreement and thereafter, to hold each other’s Confidential Information in confidence and not to disclose or use, except in performance of its obligations or enjoyment of its rights under this Agreement, the other party’s Confidential Information. Each party agrees, with respect to the other party’s Confidential Information, to use the same degree of care that it uses to protect its own Confidential Information of a similar nature and value to ensure that such other party’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement; provided, that such standard of care shall in no event be less than a reasonable standard of care.

9.4       Required Disclosure. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information to the extent that such disclosure is required by law or court order, provided however, that the receiving party shall use reasonable commercial efforts to provide the disclosing party prior written notice of such disclosure.

9.5       Client Lists. Client agrees to allow the use of its name in a list of Clients on the MediSked, LLC Web site and in other MediSked, LLC marketing materials. For all other written publications, Client’s consent to disclose Client as a Client of MediSked, LLC will be required.

10. Indemnification

Without limiting the right to otherwise enforce the terms hereof, the following indemnification provisions are hereby provided:

10.1     Indemnification by MediSked, LLC. MediSked, LLC shall indemnify, defend and hold Client harmless from and against any and all losses, liabilities, claims, costs, expenses and damages, including reasonable attorneys’ fees, resulting from, arising out of, or in any way connected with any of the following:

10.1.1  Any claim by Client that MediSked, LLC, or employees, subcontractors, vendors or agents of MediSked, LLC, have materially breached the terms of this Agreement;

10.1.2  Any claim by a third party that the Services infringe any United States patent, copyright, trademark or other proprietary right by defending against such claim and paying all amounts that a court finally awards or that MediSked, LLC agrees to in settlement of such claims.

10.1.3  Any claims, lawsuits, demands and judgments arising out of, or in connection with, any act or omission that compromises the security of Client Content to the extent that the conduct of MediSked, LLC or of its employees, subcontractors, vendors or agents constituted gross negligence or willful misconduct with respect to the security of the Client Content.

10.1.4  Any claims, lawsuits, demands and judgments arising out of, or in connection with a breach of Section 9 including a breach of the Business Associate Agreement by MediSked, LLC.

10.2     Indemnification by Client. Client shall indemnify, defend and hold MediSked, LLC harmless from and against any and all losses, liabilities, claims, costs, expenses and damages, including reasonable attorneys’ fees, resulting from, arising out of, or in any way connected with:

10.2.1  Any claim by MediSked, LLC that Client, or employees, subcontractors, vendors or agents of Client, have materially breached the terms of this Agreement;

10.2.2  Any claim by MediSked, LLC that is in connection with the Client Content or use of the Services by Client and its Users in violation of this Agreement, except to the extent that such claims arise from breach of this Agreement by MediSked, LLC or are otherwise covered by the indemnification by MediSked, LLC set forth in Section 10.1 above.

10.3     Conduct Not Covered by Indemnification.

10.3.1  MediSked, LLC will have no liability to Client, or to any third party, under the terms of this Agreement to the extent that any third-party claims described herein are based on use of the Service in a manner that violates this Agreement. MediSked, LLC shall have no liability to Client under the Section 10 hereof or otherwise under the terms of this Agreement to the extent that any claim thereunder is based upon: (i) use of the Services in combination with equipment or software not supplied hereunder or not approved by MediSked, LLC where the Services themselves would not be infringing; (ii) use of the Services in an application or environment for which it was not designed or not contemplated under this Agreement; or (iii) use of the Services in a manner that violates the terms of this Agreement.

10.4     Procedure: Indemnification by one party of the other is conditioned upon the following: (i) the indemnified party promptly notifies the indemnifying party in writing of any claim; (ii) the indemnifying party has control of the defense and all related settlement negotiations; and (iii) the indemnified party cooperates in the defense and furnishes the indemnifying party with all related evidence in its control. The indemnifying party shall not settle any claim for other than monetary damages without the written consent of the indemnified party, which shall not be unreasonably withheld or delayed. If a claim with respect to matters covered under Section 10.1.2 occurs, or in MediSked, LLC’s opinion is likely to occur, MediSked, LLC may: (i) procure for Client the right to continue using the Services; or (ii) cause the Service to be replaced or modified so that it becomes non-infringing, provided, however, if neither of these alternatives is reasonably available MediSked, LLC may terminate this Agreement and MediSked, LLC shall refund to Client any prepaid fees attributable to the terminated portion of the term of this Agreement. NOTWITHSTANDING ANYTHING ELSE WHICH MAY BE CONTAINED IN THIS AGREEMENT, THE FOREGOING STATES THE ENTIRE OBLIGATION OF MEDISKED, LLC UNDER THE TERMS OF THIS AGREEMENT WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SAAS.

11. Limitation of Liability

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY HERETO BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN ADDITION TO, AND NOT IN LIMITATION OF, ANY OTHER LIMITATIONS SET FORTH IN THIS AGREEMENT, MEDISKED, LLC’S ENTIRE LIABILITY FOR DAMAGES UNDER OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO MEDISKED, LLC FOR THE SERVICES, BUT IN NO EVENT SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO A CLAIM FOR SUCH LOSS OR DAMAGE.

ADDITIONALLY, CLIENT ACKNOWLEDGES THAT MEDISKED, LLC SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF MEDICAL BILLING OR MEDICAL BILLING RELATED SERVICES, WHETHER SUCH LIABILITY IS ASSERTED IN CONTRACT OR TORT AND IRRESPECTIVE OF WHETHER CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, EXCEPT TO THE EXTENT THAT MEDISKED, LLC HAS ACTED NEGLIGENTLY, OR WITH MALICIOUS PURPOSE.

CLIENT AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

For purposes of the waivers contained herein, “Medical Billing or Medical Billing Related Services” includes, without limitation, MediSked, LLC submitting claims, and other information provided to MediSked, LLC by Client, to Medicare and/ or Medicaid or other applicable government authority or private agency.

In the event of any errors with any billing or billing related service provided by MediSked, LLC under the terms of this Agreement (other than errors (i) arising out of Client’s failure to provide MediSked, LLC with complete and accurate information or (ii) related to non-eligible claims, which, in the case of either subprovisions (i) or (ii) MediSked, LLC shall have no liability whatsoever), as MediSked, LLC’s sole responsibility with respect thereto, at its sole cost and expense, will be to use commercially reasonable efforts to correct such errors.

MediSked, LLC shall provide Client with proof of errors and omissions insurance, upon request, up to one (1) time per year.

12. Relation of Parties

This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties; nor will either party hold itself out as an agent, partner, or joint venture party of the other party. Both parties shall be, and shall act as, independent contractors. Neither party shall have authority to create any obligation for the other party, except to the extent specifically stated herein.

13. Notice

Any notice or other communication (“Notice”) required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested, to the addresses listed above or such other address that a party may designate in accordance with the provisions of this paragraph. A Notice shall be deemed given if (i) delivered personally, only upon acknowledgement in writing by a person accepting delivery at the address to which delivered; (ii) sent by facsimile, when transmitted provided that confirmation of transmission was received; (iii) sent by overnight delivery, twenty-four (24) hours after having been delivered to a recognized courier for next day delivery; and (iv) sent by certified mail or registered mail, return receipt requested, three (3) days after it is deposited in the United States mail. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given.

14. Force Majeure

Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party (each a “Force Majeure Event”).

15. Severability

If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.

16. Assignment

Neither Party may assign this Agreement without the prior consent of the other Party, which shall not be unreasonably withheld. Any attempted assignment without such written consent shall be null and void. MediSked, LLC may, without Client’s consent, assign to any person at any time the right to receive monies due or becoming due. Either Party, may also, without the other Party’s consent, assign this Agreement in the event of a sale of all or substantially all of the assigning Party’s assets or stock, or a merger or consolidation with or into another entity. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

17. Governing Law

This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the State of New York, without regard to the conflict of law provisions thereof. Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located within Monroe County in the State of New York.

18. Disputes

Any dispute or claims relating to this Agreement or Client’s use of the Services shall be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law apply to the Agreement. The binding arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration and Mediation rules (“Rules”), which are available at Web Link #3 in Section 26 of this Agreement. To initiate arbitration, Client must file their case with the AAA according to the Rules. Information on filing can be found at Web Link #4 in Section 26 of this Agreement. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. Client may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. Client and MediSked, LLC agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, Client and MediSked, LLC waive any right to a jury trial. Client and MediSked, LLC both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

19. Master Subscription Agreement Changes

MediSked, LLC reserves the right at any time to modify this Agreement and to add new or additional terms or conditions of Client’s use of the Services. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Should material changes be made to this Agreement, MediSked, LLC will provide Client with prominent notice as appropriate under the circumstances, for example displaying a prominent notice within the Platforms or by sending Client an email. Client’s continued use of the Services will be deemed acceptance of such modifications.

20. General

Client agrees and acknowledges that any acceptance of its application for the Services and the performance thereof will occur at the offices of MediSked, LLC in Rochester, New York, the location of its principal place of business.

21. Facsimile Signatures

Facsimile signatures shall have the same effect as original signatures.

22. Capitalized Terms Incorporation by Reference

All capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed thereto in any Exhibit or Attachment to this Activation Agreement. The terms of any Exhibit or Attachment to this Agreement shall be incorporated herein and made a part hereof to the same extent as if they were a part of this Agreement by being directly stated herein.

23. No Third Party Beneficiaries

Neither the Users nor any party other than MediSked, LLC and Client are intended beneficiaries of this Agreement, and no such third party shall have an independent right to enforce any of the terms or conditions hereof.

24. Cumulative Remedies

Except as expressly set forth, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies of a Party at law or in equity, statutory or otherwise.

25. Subcontractors

MediSked, LLC shall have appropriate written agreements with its subcontractors as necessary to bind such subcontractors to the requirements of this Agreement.  MediSked, LLC shall be responsible for the performance (including without limitation non-performance) of its subcontractors hereunder.  For the avoidance of doubt, MediSked, LLC’s internet service provider is not a “subcontractor” for purposes of this section.

26. Web Links Referenced in this Agreement

Links in this section will be periodically updated as necessary to reference the intended information. A history of archived link content and link updates are located at https://www.medisked.com/multimsalinks.

Updated November 27, 2017.

  1. Software and Equipment Compatibility. www.medisked.com/compatibility
  1. List of Support Holidays. https://www.opm.gov/faqs/QA.aspx?fid=e64d74ab-20a3-484c-8682-d2a2b46c22da&pid=c41e6beb-0c14-449d-bde5-355a3a3014cd
  1. AAA Commercial Arbitration and Mediation Rules. https://www.adr.org/sites/default/files/Commercial%20Rules.pdf
  1. AAA Claim Initiation Information. https://www.adr.org/sites/default/files/document_repository/How%20to%20File%20Your%20Arbitration%20Case.pdf

27. Entire Agreement

This Agreement, together with all exhibits, attachments, additional documents, and Order Forms referenced herein, constitutes the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended, or any provision waived, except in a writing signed by a duly authorized representative of each modifying, amending or waiving party. The failure of any party to require the other party’s performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by any party of a breach of any provision hereof be taken or held to be a waiver of the provision itself thereafter. The headings of the sections, paragraphs, and appendices herein are for the parties’ convenient reference only and shall not define or limit any of the terms or provisions hereof.