MSA

1. Performance. Healthsoft shall provide the computer consultation support services (“Services”) and deliverables (collectively, "Work") described in any attachments to this Agreement including any attached Sales Invoice and Statement of Work (“SOW”), which shall be in substantially the same form as Annex A, in accordance with the terms and conditions set forth herein. If the Work includes software and/or associated software documentation (“Software”), then such Software shall be licensed to Customer according to terms and conditions contained in Section 8 herein. Healthsoft personnel shall comply with Customer’s documented site and security regulations. All Work shall be deemed accepted upon receipt by Customer.

2. Customer Undertakings. As a condition precedent to Healthsoft performing its obligations hereunder, and in addition to Customer's other obligations as set forth in this Agreement, Customer shall provide the following, on a timely basis and at no charge to Healthsoft: (a) access to and use of reasonable working space, facilities and utilities, and (b) any information, data and/or documentation (collectively, “Data”) that Healthsoft reasonably requests from Customer that is necessary for Healthsoft to properly perform its obligations hereunder. Such Data shall be kept confidential by Healthsoft in accordance with Section 4. In the event that there are any delays by Customer in the timely providing of facilities, access or Data, or there are errors or inaccuracies in the Data provided, and such delays, errors or inaccuracies require additions, corrections or modifications related to Healthsoft’s performance hereunder, then any costs associated therewith shall be the responsibility of Customer, and Healthsoft shall be entitled to appropriate schedule adjustments.

3. Price and Payment Terms. In consideration for the Work performed pursuant to any attached SOW, Customer shall pay Healthsoft based upon the labor rates and/or fees specified in the relevant SOW (“Price”). "Business Day" means 8:00 am to 5:00 pm local time during Business Weeks, and "Business Week" means Monday through Friday, excluding Healthsoft-observed holidays. Hourly and daily rates are based upon performance during Business Days, weekly rates are based upon performance during Business Weeks, and project terms stated in weeks are deemed to be stated in Business Weeks. Hourly billing shall be in whole hours. Healthsoft shall not be obligated to perform any Work that would cause the Price to be exceeded in the absence of a change to the respective SOW by execution of a new SOW. Reasonable and properly documented out-of-pocket travel and living expenses incurred by Healthsoft personnel during their performance of the Work shall be reimbursed by Customer at the actual costs incurred by Healthsoft, subject to any limitations set forth in the respective SOW. Invoices for Work performed and travel and living expenses incurred shall be submitted to Customer by Healthsoft on a monthly basis. All sums payable to Healthsoft shall be due thirty (30) days from the date of Healthsoft’s invoice. All amounts past due shall accrue interest from their due dates at the rate of one and one-half percent (1.5%) per month or the maximum percentage allowable by law (whichever is less). The Price does not include any federal, state, provincial or local sales, use or excise taxes or the like assessed against or payable by Healthsoft in connection with this Agreement, and Customer shall pay to Healthsoft the amount of any tax which Healthsoft may be required to pay on account of its performance under this Agreement except for any franchise tax or tax based upon Healthsoft’s net income. Any and all balances due must be paid by the date the Software is installed on hardware at Customer’s designated facility (the “Software Installation Date”). If Customer has a balance due Healthsoft ninety (90) days past the Software Installation Date, the Software will automatically lock and suspend any further operation. Customer will then be required to contact Healthsoft to settle all amounts past due prior to Healthsoft’s reactivation of the Software. Payment of Customs and Duties will be the responsibility of the Customer. Unless otherwise provided, all dollar amounts referred to in this Agreement and in any attachments to this Agreement, including SOW, are expressed in lawful money of the United States of America .

4. Confidential & Proprietary Information. Each party shall maintain in strict confidence, and not disclose or distribute to any third person any Confidential Information of the other party for a period of five (5) years from the date of disclosure. “Confidential Information” shall mean the information disclosed by either party pursuant to this Agreement which is (i) stamped or otherwise marked as being confidential by the disclosing party, (ii) if disclosed in oral form, identified as confidential at the time of oral disclosure and is summarized by the disclosing party in a written memorandum marked as confidential and delivered within ten (10) business days after such disclosure, or (iii) of such a nature as to put a reasonable party on notice as to the confidentiality of the information disclosed. Confidential Information does not include any information that: (i) entered the public domain through no fault of the receiving party; (ii) is rightfully received by the receiving party from a third party without similar non-disclosure obligations; (iii) is already known to the receiving party prior to disclosure by the disclosing party; (iv) is independently developed by the Receiving Party without reference to the Confidential Information of the disclosing party, or (v) is required to be disclosed by law, provided that the party intending to make such required disclosure shall promptly notify the other party of such intended disclosure in order to allow such party to seek a protective order or other remedy. The obligations set forth above in this Section shall not affect Healthsoft’s ownership of Inventions (as defined in Section 5) and all intellectual property rights therein, or Healthsoft’s full exercise of those Inventions and intellectual property rights, so long as Healthsoft does not disclose Customer's Confidential Information. Software shall be deemed the Confidential Information of Healthsoft.

5. Proprietary Rights. Healthsoft or its subcontractors, as applicable, retain sole ownership of all designs, engineering details, data, discoveries, inventions, improvements and the like (collectively, “Inventions”), and all intellectual property rights therein, made by Healthsoft or such subcontractors in the course of performing the Work, and shall have the exclusive right to determine how to protect the Inventions. Reports deliverable by Healthsoft to Customer under this Agreement are provided to Customer with Limited Rights. “Reports” means the written reports specifically produced by Healthsoft in performing the Work and specified to be a deliverable item to Customer. “Limited Rights” means the right of Customer to use the Reports in implementing Customer’s business requirements, but in no event the right to resell or sublicense such Reports or any portion thereof. Healthsoft retains for itself, its parent Healthsoft, affiliates and subsidiaries, the right to retain and make copies of the Reports and to make use of the contents thereof for its and their own internal use and, as to any portion of such contents which is not Customer’s Confidential Information, to make use thereof for any purpose, whether internal or otherwise.

6. Limited Warranty. Healthsoft warrants for a period of ninety (90) days from the date of completion, installation or delivery of the Work, as applicable, that: (i) the Work was performed in a good and workmanlike manner consistent with practices employed by persons knowledgeable in the field of computer systems engineering and design; and (ii) that any Software and other deliverables, including Reports, are free from material defects in workmanship and materials, and conform in all material respects to the descriptions, specifications and other requirements of this Agreement. In the event of a breach by Healthsoft of the foregoing warranty of which Customer notifies Healthsoft in writing during the warranty period, Healthsoft’s sole obligation and Customer’s exclusive remedy shall be for Healthsoft to correct the portion of the Work that does not conform to such warranty. In the event Healthsoft is unable to make such corrections, the sole remedy of Customer and Healthsoft’s sole obligation shall be to recover the compensation paid to Healthsoft for the Work giving rise to such warranty failure. This limited warranty with respect to any Software shall be voided in the event Customer: (i) makes additions to, alters, modifies, enhances, repairs or disassembles the Software, or fails to maintain the hardware on which the Software operates in good working order, or changes the environment in which the Software operates; (ii) uses the Software in a manner for which it was not designed, or in an incompatible operating environment; or (iii) mishandles, abuses, misuses or damages the Software or the hardware on which or the environment in which the Software operates. All computer‑related equipment/hardware delivered to Customer by Healthsoft as a part of the Work is warranted in accordance with the original manufacturer’s warranty only. THE LIMITED WARRANTY STATED IN THIS SECTION AND THE REMEDIES FOR A FAILURE OR BREACH OF SUCH LIMITED WARRANTY ARE EXCLUSIVE. THEY ARE GIVEN TO CUSTOMER IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH HEALTHSOFT SPECIFICALLY DISCLAIMS.

7. Limitation of Damages. IN NO EVENT SHALL HEALTHSOFT (OR ITS SUPPLIERS) BE LIABLE TO CUSTOMER FOR LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THE FOREGOING LIMITATION SHALL APPLY EVEN IF HEALTHSOFT (OR ITS SUPPLIERS) KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OR ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR HEREIN. EXCEPT IN RESPECT OF INJURY TO OR DEATH OF ANY PERSON RESULTING FROM THE NEGLIGENCE OF HEALTHSOFT, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS (FOR WHICH NO LIMIT APPLIES), IN NO EVENT WILL HEALTHSOFT'S ENTIRE LIABILITY UNDER THIS AGREEMENT AND ANY ANNEXES AND/OR SOW’S ATTACHED HERETO EXCEED THE GREATER OF (i) THE FEES PAID TO HEALTHSOFT UNDER THE RELEVANT SOW OR (ii) $50,000.00. IN NO EVENT SHALL HEALTHSOFT HAVE ANY LIABILITY FOR ANY OEM PRODUCTS OR HEALTHSOFT PRODUCTS USED FOR AVIATION, MEDICAL, LIFESAVING, LIFE SUSTAINING OR NUCLEAR APPLICATIONS. IN ADDITION, HEALTHSOFT SHALL NOT BE LIABLE UNDER ANY CLAIM BROUGHT UNDER ANY THEORY OF LAW THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF SUIT THEREON. HEALTHSOFT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING OEM PRODUCTS OR HEALTHSOFT PRODUCT OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS ON LIABILITY ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE MATERIAL AND ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

8. Software License. Notwithstanding any other provisions hereof, Healthsoft does not sell and Customer shall not acquire any right, title or interest in any Software except those limited rights specifically granted herein. Title to and all copyrights, patents, trade secrets and/or other intellectual property rights in and to Software remains with Healthsoft. Healthsoft, to the extent of its legal right to do so, hereby grants Customer a personal, non-transferable, indivisible, non-exclusive right to use the Software. However, if Customer has licensed the Software on a subscription-based plan, such license shall automatically terminate upon Customer’s failure to pay Healthsoft for the subscription-based fees for either the current subscription license and/or any renewal subscription license. All Software is licensed to Customer pursuant to Healthsoft’s end-user license, attached hereto as Annex B (“Software License”). If the Software is or contains third-party vendor software, additional Software license terms may apply and Customer agrees to execute such additional Software license terms upon Healthsoft’s request (and such additional Software license terms are hereby made a part of this Agreement). Notwithstanding the foregoing, Healthsoft may include additional Software licensing terms in a written or shrink-wrap or click-wrap license between Healthsoft and Customer. Customer shall execute by click-wrap, shrink wrap or written signature, such other form of Software license upon Healthsoft’s request.

9. Optional Software and/or Hardware Maintenance.

(a) Healthsoft shall provide optional Software and/or hardware maintenance services to Customer subject to the additional terms and conditions set forth in Annexes C and D, respectively, to this Agreement. Additionally, Healthsoft may provide additional remote data backup services subject to the additional terms and conditions set forth in Annex E to this Agreement.

(b) All Hardware is provided with the manufacturer’s warranty only. Accordingly, Customer shall direct all Hardware-related problems to the respective Hardware manufacturer, unless Customer has purchased a Hardware Maintenance Agreement with Healthsoft.

10. Default. If any material breach of this Agreement, including any SOW, continues uncorrected for more than thirty (30) days after written notice from the aggrieved party describing the breach, the aggrieved party shall be entitled to declare a default, terminate this Agreement and/or relevant SOW, and pursue any and all other remedies available at law or equity, except as specifically limited elsewhere in this Agreement.

11. Excused Performance. Neither party shall be liable for delays, loss, damages or other consequences of acts, omissions or events beyond a party’s reasonable control and which may not be overcome by due diligence, or caused by strikes or labor strife and unrest.

12. Notices. Notices, authorizations and other official communications under this Agreement shall be transmitted in writing by prepaid United States certified mail or Canada Post registered mail, return receipt requested, or overnight receipted courier, to Healthsoft, Attn: Operations Manager, at the address set forth above and to Customer, to the billing address and attention of the person who executed this Agreement for Customer. Any notice given pursuant to this Section shall be deemed to have been received, in the case of certified mail, on the date of receipt as evidenced by the U.S. Postal Service return receipt card, and, in the case of overnight courier, on the next business day after sending, unless documented otherwise by recipient.

13. Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party, in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the preceding sentence, either party may assign this Agreement to its parent or an affiliate, without the consent of the other party but only upon written notice to the other party.

14. Subcontracting. Healthsoft reserves the right to subcontract such portions of the Work to subcontractors of Healthsoft’s choice as it deems appropriate, provided that no such subcontract shall relieve Healthsoft of primary responsibility for performance of such Work.

15. Indemnification. Each party shall indemnify the other with respect to any third party claim alleging bodily injury, including death, or damage to tangible property, to the extent such injury or damage is caused by the negligence or willful misconduct of the indemnifying party. Healthsoft shall indemnify and defend Customer, at Healthsoft’s expense, from and against any action brought against Customer by a third party, to the extent that such action is based on a claim that Customer’s use of Software infringes any United States patent or copyright, or misappropriates the trade secret rights of that third party and such claim does not arise from (i) modifications made by Customer (directly or indirectly by a third party) to the Software; and (ii) use or combination of the Software with other products not supplied by Healthsoft. A condition precedent to any obligation of a party to indemnify shall be for the other party to promptly advise the indemnifying party of the claim and turn over its defense. The party being indemnified must cooperate in the defense or settlement of the claim, but the indemnifying party shall have sole control over the defense or settlement. If the defense is properly and timely tendered to the indemnifying party, then the indemnifying party must pay all litigation costs, reasonable attorney's fees, settlement payments and any damages awarded; provided, however, that this shall not be construed to require the indemnifying party to reimburse attorney's fees or related costs that the indemnified party incurs either to fulfill its obligation to cooperate, or to monitor litigation being defended by the indemnifying party. If the Software becomes, or in Healthsoft’s sole opinion is likely to become, the subject of a claim of infringement or misappropriation, Customer shall permit Healthsoft, at Healthsoft’s option and expense, either to: (1) procure the right to continue using the Software; (2) replace or modify (at Healthsoft’s option) the Software while maintaining the functionality of the Software; or (3) accept the return of the Software and upon such return refund to Customer the license fees paid for such Software less depreciation calculated on a three (3) year straight line basis from the date of delivery to the date of return.

16. Independent Contractor. Nothing in this Agreement shall be interpreted or construed so as to create any relationship between the parties other than that of independent contracting entities. Neither party shall be authorized to obligate, bind or act in the name of the other party, except to the extent Healthsoft is expressly authorized to do so as set forth in a SOW.

17. Publicity. Unless required by law, neither party shall disclose the existence of, or any term or condition of, this Agreement, including but not limited to a SOW, to any third party (other than an affiliate) without the prior written consent of the other party. Neither party shall publish or use any advertising, sales promotion, press releases or publicity matters relating to this Agreement without the prior written approval of the other party, such approval not to be unreasonably withheld.

18. Applicable Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed in all respects by the laws of the State of Texas except for its rules with respect to the conflict of laws. The parties hereby attorn to the exclusive jurisdiction of the Courts of competent jurisdiction of The State of Texas in any proceeding hereunder.

19. Waiver. Except as expressly provided for herein, failure by either party to require performance by the other party or to claim a breach of any provision of this Agreement will not be construed as a waiver of any right accruing hereunder or of any subsequent breach, and will not affect the effectiveness of this Agreement or any part hereof, or prejudice either party regarding any subsequent action.

20. Invalidity. If any provision of this Agreement is held invalid, the remaining provisions shall continue in full force and effect and the parties shall substitute for the invalid provision a valid provision which most closely approximates the economic effect and intent of the invalid provision.

21. Shipment. All equipment/hardware provided to Customer by Healthsoft as a part of the Work shall be delivered FCA, Healthsoft’s point of shipment. Risk of loss shall pass to Customer upon delivery of such equipment to a carrier of Healthsoft’s choosing.

22. Binding Arbitration, Disputes. Except for Customer’s breach of the Software License and the Confidential & Proprietary Information Section herein, the parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly through discussions between themselves at the operational level. In the event resolution cannot be reached, such dispute shall be negotiated between appointed counsel or senior executives of the parties who have authority to settle the dispute. The disputing party shall give the other party written notice of the dispute and if the parties fail to resolve the dispute within thirty (30) days either party may seek arbitration. All disputes arising out of or relating to this Agreement shall be finally settled by binding arbitration in Dallas, Texas and shall be resolved under the arbitration and related laws of The State of Texas. Notwithstanding the foregoing, all Customer cause of actions must be brought against Healthsoft within one (1) year from the date such cause of action accrued; otherwise, such cause of action is hereby waived by Customer.

23. Term. This Agreement shall become effective as of the date signed by both parties and shall continue for the period designated in the SOW (the “Term”). The Agreement shall automatically renew for additional Terms, unless and until either party gives written notice at least sixty (60) days, prior to the end of the existing Term, to the other of its intent to terminate this Agreement.

24. Termination. Healthsoft reserves the right to terminate this Agreement and/or a SOW at any time and for any reason whatsoever without further liability or obligation to Customer; however, Healthsoft shall refund a prorated portion of the fees paid by Customer for those Work portions which in Healthsoft’s sole determination were not delivered under the relevant SOW. If Customer terminates this Agreement or any SOW, all fees paid to Healthsoft under the Agreement and/or SOW shall be deemed “non-refundable” and Healthsoft shall have no duty or obligation to pro rata any fees paid by Customer hereunder.

25. Entire Agreement. This Agreement and all Annexes attached hereto, including but not limited to any SOWs, constitute the entire agreement between Healthsoft and Customer with respect to the subject matter hereof and supersede all previous negotiations, proposals, commitments, writings, advertisements, publications and understandings of any nature whatsoever and in any manner whatsoever relating thereto. No agent, employee or representative of Healthsoft has any authority to bind Healthsoft to any affirmation, representation, or warranty concerning the Work and unless such affirmation, representation or warranty is specifically included within this Agreement, it shall not be enforceable by Customer or any assignee or sublicensee of Customer. Any terms and conditions on any Customer purchase order form or other document issued by Customer to implement this Agreement which are in addition to or in conflict with the terms and conditions of this Agreement shall be null and void, even if acknowledged in writing by Healthsoft. No change, amendment or modification of this Agreement shall be effective unless made in writing and signed by the authorized representatives of both parties.

Subject to the terms in the Master Service Agreement and hereinafter set forth, Healthsoft grants to Customer a personal, non-transferable, indivisible, non-exclusive right to use the Software, proprietary to Healthsoft or its suppliers, including associated documentation, as a part of Customer purchased products which contain Healthsoft products (“Products”). Customer is granted no title or ownership rights, in or to the Software, in whole or in part, and Customer acknowledges that title to and all copyrights, patents, trade secrets and/or any other intellectual property rights to and in all such Software and associated documentation are and shall remain the property of Healthsoft and/or Healthsoft’s suppliers.

Healthsoft considers the Software to contain "trade secrets" of Healthsoft and/or its suppliers. Such "trade secrets" include, without limitation thereto, the specific design, structure and logic of individual Software programs, their interactions with other portions of Software, both internal and external, and the programming techniques employed therein. In order to maintain the "trade secret" status of the information contained within the Software, the Software is being delivered to Customer in object code form only.

Healthsoft or any of its suppliers holding any intellectual property rights in any Software, and/or any third party owning any intellectual property rights in software from which the Software was derived, are intended third party beneficiaries of this Software License. All grants of rights to use intellectual property intended to be accomplished by this Software License are explicitly stated. No other grants of such rights shall be inferred or shall arise by implication.

Customer warrants to Healthsoft that Customer is not purchasing the rights granted by this Software License in anticipation of reselling those rights.

Customer shall:

· Hold the Software in confidence for the benefit of Healthsoft and/or Healthsoft’s suppliers using no less a degree of care than it uses to protect its own most confidential and valuable information; and

· Keep a current record of the location of each copy of Software made by it; and

· Install and use each copy of Software only on a single CPU at a time (for this purpose, single CPU shall include systems with redundant processing units); and

· Affix to each copy of Software made by it, in the same form and location, a reproduction of the copyright notices, trademarks, and all other proprietary legends and/or logos of Healthsoft and/or Healthsoft’s suppliers, appearing on the original copy of such Software delivered to Customer; and retain the same without alteration on all original copies; and

· Issue instructions to each of its authorized employees, agents, and/or representatives to whom Software is disclosed, advising them of the confidential nature of such Software and to provide them with a summary of the requirements of this Software License; and

· Return the Software and all copies through an authorized distributor/reseller to Healthsoft at such time as Customer chooses to permanently cease using it.

Customer shall not:

· Use Software (i) for any purpose other than Customer's own personal use and (ii) other than as provided by this Software License; or

· Allow anyone other than Customer's employees, agents and/or representatives with a "need to know" to have physical access to Software; or

· Make any copies of Software except such limited number of object code copies in machine readable form only, as may be reasonably necessary for execution or archival purposes only; or

· Make any modifications, enhancements, adaptations, or translations to or of Software, except as may result from those Customer interactions with the Software associated with normal use and explained in the associated documentation; or

· Attempt to reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode Software, in order to derive the source code form or for any other reason; or

· Make full or partial copies of any documentation or other similar printed or machine-readable matter provided with Software unless the same has been supplied in a form by Healthsoft intended for periodic reproduction of partial copies; or

· Export or re-export Software and/or associated documentation from the fifty states of the United States and the District of Columbia .

· NOTE: Notwithstanding the above restrictions, if Customer has licensed the Software under a "site license" option as set forth in the applicable SOW, Customer is authorized to make a limited number of copies of the Software and documentation to support additional users as specified in such SOW.

Customer may assign collectively its rights under this Software License to any subsequent owner of the associated Products, but not otherwise, subject to the payment of the then current license fee for new users, if any. No such assignment shall be valid until Customer (1) has delegated all of its obligations under this Software License to the assignee; and (2) has obtained from the assignee an unconditional written assumption of all such obligations; and (3) has provided Healthsoft a copy of such assignment, delegation and assumption; and (4) has transferred physical possession of all Software and all associated documentation to the assignee and destroyed all archival copies. Except as provided, neither this Software License nor any rights acquired by Customer through this Software License are assignable. Any attempted assignment of rights and/or transfer of Software not specifically allowed shall be void and conclusively presumed a material breach of this Software License.

If Healthsoft (i) claims a material breach of this Software License, and (ii) provides written notice of such claimed material breach to Customer and (iii) observes that such claimed material breach remains uncorrected and/or unmitigated more than thirty (30) days following Customer's receipt of written notice specifying in reasonable detail the nature of the claimed material breach, then Customer acknowledges that this Software License may be immediately terminated by Healthsoft and Customer further acknowledges that any such termination shall be without prejudice to any other rights and remedies that Healthsoft may have at law or in equity.

THE EXPRESS LIMITED WARRANTIES FOR THE LICENSED SOFTWARE ARE SOLELY THOSE LIMITED WARRANTIES GRANTED TO CUSTOMER BY HEALTHSOFT IN THE MAIN BODY OF THE AGREEMENT TO WHICH THIS SOFTWARE LICENSE IS ANNEXED. OTHER THAN AS SET FORTH THEREIN, THIS SOFTWARE LICENSE DOES NOT CONFER ANY WARRANTY TO CUSTOMER FROM OR BY HEALTHSOFT.

IN NO EVENT WILL HEALTHSOFT AND/OR HEALTHSOFT’S SUPPLIERS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO OR THROUGH CUSTOMER FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, OR OTHER ECONOMIC DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY, AS A RESULT OF USE OR INABILITY TO USE THE LICENSED SOFTWARE OR BREACH OF ANY WARRANTY OR OTHER TERM OF THIS SOFTWARE LICENSE, REGARDLESS OF WHETHER HEALTHSOFT AND/OR HEALTHSOFT’S SUPPLIERS WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS SOFTWARE LICENSE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE COUNTY OF DALLAS.

1. Scope of Agreement

1.1 Scope and Purpose of Agreement. This Maintenance Agreement assumes that Healthsoft and Customer have entered into a Software License, as defined in the Master Service Agreement under which Healthsoft has licensed or provided the Software (as hereinafter defined) to Customer. Customer wishes to procure, and Healthsoft wishes to provide Maintenance Services (as hereinafter defined) for the Software as provided below.

2. Definitions

2.1 Definitions. As used in this Software Maintenance Agreement, the following terms shall have the meanings set forth below:

“Business Day” shall mean any day that Healthsoft is open for business.

“Critical Problem” shall mean an error or problem which causes an adverse and material effect on Customer’s ability to utilize the Software according to the Performance Standards.

“Software” shall mean software that is owned or developed by Healthsoft and licensed to Customer under the Software License and any Updates and Enhancements thereto.

“Enhancements” shall mean any modifications or customizations made to the Software which are provided to Customer pursuant to this Maintenance Agreement.

“End-User Reference Manuals” shall mean the documentation containing the Performance Standards.

“Live Operation” shall mean upon software delivery.

“Maintenance Services” shall mean the services provided pursuant to this Software Maintenance Agreement as described herein.

“Non-Critical Problem” shall mean any problem that does not meet the definition of a Critical Problem. Fixes and corrections for Non-Critical Problems shall await the release of Updates.

“Performance Standards” shall mean the operating descriptions for the Software contained in the End-User Reference Manuals.

“Third Party Software” shall mean software owned by a third party, including any Updates and Enhancements distributed or sublicensed to Customer through Healthsoft under the Software License.

“Updates” shall mean any periodic software releases and any release notes which may be provided by Healthsoft to fix Critical or Non-Critical Problems in the Software and which are provided to Customer pursuant to this Maintenance Agreement.

3. Term and Fees

3.1 Term and Renewal. The initial term of this Software Maintenance Agreement shall commence on the date of Live Operation and shall continue thereafter for the period designated in the SOW (the “Term”), or a period of one (1) year. This Maintenance Agreement shall automatically renew for successive Terms unless terminated by either party, by giving the other party sixty (60) days written notice prior to the end of the existing Term.

3.2 Termination. Healthsoft may terminate this Maintenance Agreement at any time for its convenience, for no reason or for any reason. Upon termination, Healthsoft shall return to Customer pro rata any fees already paid.

3.3 Monthly Maintenance Charge. Customer shall pay to Healthsoft the amount set forth on the SOW per month, payable monthly in advance (the “Monthly Maintenance Charge”). Healthsoft reserves the right to increase the Monthly Maintenance Charge for subsequent terms and shall give Customer advance notice of such increases. Unless otherwise provided, all dollar amounts referred to in this Agreement and in any attachments to this Agreement, including SOW, are expressed in lawful money of the United States of America .

3.4 Taxes. All taxes and duties attributable to this Maintenance Agreement except taxes relating to Healthsoft’s income, including sales, use and any other tax assessed by local, state, provincial or federal authorities shall be borne by Customer. Customer shall reimburse Healthsoft for any such taxes and duties.

3.5 Additional Fees. Healthsoft reserves the right to charge additional fees for maintenance work outside of the scope of the relevant SOW or maintenance work that, in Healthsoft’s sole opinion, may become excessive. Such additional fees may include, but are not limited to, fees for providing remote and/or on-site services.

4. Maintenance Services

During the initial term of this Maintenance Agreement, and during subsequent terms, Customer, upon payment in advance of the Monthly Software Maintenance Charge, will receive the Maintenance Services set forth in this Section 4:

4.1 Critical Problems. Healthsoft shall provide a telephone number during Healthsoft’s normal business hours, for the reporting by Customer of Critical Problems. Healthsoft shall respond via telephone to Customer’s report of a Critical Problem within two (2) business hours.

4.1.1 Customer may escalate a Critical Problem to the attention of the following individuals, if a remedy for such Critical Problem is not delivered in a reasonable time:

(a) Support Manager;

(b) Customer Service Department.

4.2 Non-Critical Problems. Healthsoft shall provide telephone support during Healthsoft’s regular business hours for the handling of Customer questions relating to the general operation of the Software and for the reporting of Non-Critical Problems. Correction of Non‑Critical Problems shall await the release of corrective updates or enhancements, if any, which Healthsoft may provide during the term of the Software Maintenance Agreement at no additional charge.

4.3 Changes. Healthsoft will supply as it deems necessary, its standard releases of Enhancements, Updates, corrections and supporting documentation to the Software during the term of the Maintenance Agreement at no additional charge. Customer shall be responsible for installing such Enhancements, Updates and corrections.

4.4 Telecommunication Charges. Telecommunication charges associated with dial-up modem support are chargeable to Customer and will be invoiced monthly at Healthsoft’s direct cost.

1. Scope of Agreement

1.1 Scope and Purpose of Agreement. Healthsoft and Customer have entered into a Software License, as defined in the Master Service Agreement, under which Healthsoft has licensed or provided the Software (as hereinafter defined) to Customer. Customer wishes to procure, and Healthsoft wishes to provide Maintenance Services (as hereinafter defined) for the Hardware as provided below.

2. Definitions

2.1 Definitions. As used in this Maintenance Agreement, the following terms shall have the meanings set forth below:

“Business Day” shall mean any day that Healthsoft is open for business.

“Critical Problem” shall mean an error or problem which causes an adverse and material effect on Customer’s ability to utilize the Software according to the Performance Standards.

“Hardware” shall mean computer components and configurations that have been provided and installed by Healthsoft or are identified in a SOW to the Master Service Agreement.

“Software” shall mean software that is owned or developed by Healthsoft and licensed to Customer under the Software License and any Updates and Enhancements thereto (as those terms are defined in the Software License).

“Maintenance Services” shall mean the services provided pursuant to this Maintenance Agreement as described herein.

“Non-Critical Problem” shall mean any problem that does not meet the definition of a Critical Problem.

“Performance Standards” shall mean the operating descriptions for the Software contained in the End-User Reference Manuals (as such term is defined in the Software License).

3. Term and Fees

3.1 Term and Renewal. The initial term of this Maintenance Agreement shall commence on the date of activation of an executed Hardware Maintenance Agreement and shall continue thereafter for the period designated in the SOW (the “Term”), or for a period of one (1) year. This Maintenance Agreement shall automatically renew for successive Terms unless terminated by either party, by giving the other party sixty (60) days written notice prior to the end of the existing Term.

3.3 Monthly Maintenance Charge. Customer shall pay to Healthsoft the amount set forth in the attached SOW per month, payable monthly in advance (the “Monthly Maintenance Charge”). Healthsoft reserves the right to increase the Monthly Maintenance Charge for subsequent terms and shall give Customer advance notice of such increases. Unless otherwise provided, all dollar amounts referred to in this Agreement and in any attachments to this Agreement, including SOW, are expressed in lawful money of the United States of America .

4. Maintenance Services

During the initial term of this Maintenance Agreement, and during subsequent terms, Customer, upon payment in advance of the Monthly Maintenance Charge, will receive the Maintenance Services set forth in this Section 4:

4.1 Services. Service options under this Maintenance Agreement include two levels of service: 1) Telephone Service, and 2) Gold (Full Service). The Telephone Service Policy will troubleshoot hardware issues and problems over the telephone. The Gold (Full Service) Policy includes the following services: (a) replacement or loan computers for repairs that are expected to take longer than 24 hours to be completed; (b) telephone hardware technical support services for troubleshooting hardware issues and problems over the telephone; (c) coordination of Hardware repair services from the manufacturer for components still under warranty from the manufacturer; and/or (d) on-site services at a significantly-reduced daily rate if HealthSoft determines it is required to correct a problem. Replacement parts are not included and will be billed separately.

4.2 Critical Problems. Healthsoft shall provide a telephone number during Healthsoft’s normal business hours, for the reporting by Customer of Critical Problems.

4.2.1 Healthsoft shall respond via telephone to Customer’s report of a Critical Problem within [two (2)] business hours. Healthsoft shall contact and coordinate with the Hardware manufacturer (if the Hardware is still under warranty) to activate a warranty repair request within four (4) hours. For example, Dell’s warranty indicates a response to correct a computer problem within 24 hours.

4.2.2 Healthsoft, at its discretion, will also provide a loan computer overnight or commit to having a representative onsite at the Customer’s office, if the resolution requires more than simple Hardware repair from the Hardware manufacturer or cannot be addressed remotely by our IT group (i.e., expected to take longer than forty-eight (48) hours to be completed). Healthsoft will use its best efforts to correct the Critical Problem or provide Customer with a way to temporarily work around the Critical Problem if able to do so, and notify Customer on a regular basis as to the progress of the corrective efforts, until such time as a correction can be made.

4.2.3 Customer may escalate a Critical Problem to the attention of the following individuals, if a remedy for such Critical Problem is not delivered in a reasonable time:

(a) Technical Support Manager;

(b) Customer Service Department.

1a. Grants and Restrictions. Subject to the terms in this License & Agreement, Healthsoft grants to Customer, and Customer accepts, a nonexclusive, non-assignable, nontransferable, non-sublicensable, limited license to use the Software, Technology and/or Hardware proprietary to Healthsoft, including associated documentation utilized by Healthsoft to provide Remote Data Backup Services (collectively “RDBS Technology”), for Customer’s individual use equal to the number and type of Agents purchased by Customer, as described in the applicable Attachment(s); (ii) use the Software in object‑code/executable form only for the Customer’s internal business needs; (iii) use the Documentation to support the use of the Software and/or Services; and (iv) make a commercially reasonable number of copies of the Software in object-code/executable form only, for nonproductive backup disaster recovery purposes; provided, however, that Customer shall reproduce and include all of Healthsoft’s copyright notices and proprietary legends on each such copy. Customer is granted no title in or ownership rights to the RDBS Technology, in whole or in part, and Customer acknowledges that title to and all copyrights, patents, trade secrets and/or any other intellectual property rights to and in all such RDBS Technology are and shall remain the property of Healthsoft and/or Healthsoft’s suppliers.

Customer and Healthsoft acknowledge that the RDBS Technology contains “trade secrets” of Healthsoft and/or its suppliers. Such “trade secrets” include, without limitation thereto, the specific design, structure and logic of RDBS Technology, its interactions with other software, both internal and external, and the programming techniques employed therein.

Healthsoft, or any of its suppliers holding any intellectual property rights in any RDBS Technology, and/or any third party owning any intellectual property rights in software from which the RDBS Technology was derived, are intended third party beneficiaries of this License & Agreement. All grants of rights to use intellectual property intended to be accomplished by this License & Agreement are explicitly stated. No other grants of such rights shall be inferred or shall arise by implication. Healthsoft (or its Vendor, as applicable) shall have sole and exclusive ownership of all right, title, and interest in and to the Software, Services, Documentation and all copies thereof including all derivations, modifications and enhancements thereto (including but not limited to ownership of all intellectual property rights). This Agreement does not provide Customer with title or ownership of the Software, Services and/or Documentation, but only a right of limited use. Customer agrees to inform Healthsoft immediately of any infringement or other improper action with respect to Healthsoft’s intellectual property as stated herein, or the intellectual property rights therein of Healthsoft’s suppliers that comes to Customer’s attention.

1b. Previous Versions. It is the responsibility of Customer to obtain and install all Upgrades and Updates; Healthsoft shall take commercially reasonable efforts in accordance with industry standards to notify Customer of all Upgrades and Updates. Healthsoft reserves the right to without support for versions of the Software, which have not had the latest Upgrades and Updates installed. If Customer elects not to install the latest Upgrades and Updates, then Healthsoft shall only provide Maintenance Service the previous versions of the Software for one (1) year commencing immediately upon the commercial availability of such subsequent Update and Upgrade.

2. Customer Representations. Customer warrants to Healthsoft that Customer is not purchasing the rights granted by this License & Agreement in anticipation of reselling those rights. Additionally, Customer shall:

· Hold the RDBS Technology in confidence for the benefit of Healthsoft and/or Healthsoft’s suppliers using no less a degree of care than it uses to protect its own most confidential and valuable information;

· Affix to each copy of the RDBS Technology made by it, in the same form and location, a reproduction of the copyright notices, trademarks, and all other proprietary legends and/or logos of Healthsoft and/or Healthsoft’s suppliers, appearing on the original copy of such RDBS Technology delivered to Customer, and retain the same without alteration on all original copies;

· Issue instructions to each of its authorized employees, agents, and/or representatives to whom RDBS Technology is disclosed, advising them of the confidential nature of such RDBS Technology and to provide them with a summary of the requirements of this License & Agreement; and

· Return the RDBS Technology and all duplicates or copies thereof to Healthsoft at such time as Customer chooses to permanently cease using it, or upon termination of this License & Agreement.

Customer shall not:

· Use RDBS Technology (i) for any purpose other than Customer’s own personal use and (ii) other than as provided by this License & Agreement;

· Use the Subscription Services in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems; and/or use a total number of licenses in excess of the total Seats allocated to Customer as specified in the applicable Attachment(s) for Subscription Services.

· Allow anyone other than Customer’s employees, agents and/or representatives with a “need to know” to have physical access to RDBS Technology;

· Use the RDBS Technology on computer systems used for extensive multimedia processing including, but not limited to, storing, processing or playing very large quantities of picture, video, and/or sound files;

· Use the RDBS Technology in a way that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including, but not limited to, the laws and regulations governing export/import control, unfair competition, anti‑discrimination and/or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; or (e) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data;

· Make any copies of RDBS Technology except as may be reasonably necessary for execution or archival purposes only;

· Make any modifications, enhancements, adaptations, or translations to the RDBS Technology, except as may result from those Customer interactions with the RDBS Technology associated with normal use;

· Attempt to reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the RDBS Technology, to derive the source code from or for any other reason; or

· Export or re-export RDBS Technology and/or associated documentation from the fifty states of the United States and the District of Columbia .

· NOTE: Notwithstanding the above restrictions, if Customer has licensed the RDBS Technology under a “site license” option as set forth in the applicable Statement of Work (“SOW”), Customer is authorized to make a limited number of copies of the RDBS Technology and documentation to support additional users as specified in such SOW.

Customer may not assign its rights under this License & Agreement without the express written consent of Healthsoft. Any attempted assignment of rights and/or transfer of RDBS Technology not specifically allowed shall be void and conclusively presumed a material breach of this License & Agreement.

3. Excessive Data Usage Fees. Healthsoft reserves the right to charge an additional fee for Customer’s use of the Licensed Products, which exceeds four (4) gigabytes, post compression. When the Customer’s data exceeds four (4) gigabytes, Healthsoft is authorized to increase the storage capacity and the monthly charge in relation to the expanded data volume. The cost increase will be at the current prevailing rate at the time that capacity requires increase.

4. Breach. If Healthsoft (i) claims a material breach of this License & Agreement, (ii) provides written notice of such claimed material breach to Customer, and (iii) observes that such claimed material breach remains uncorrected and/or unmitigated more than thirty (30) days following Customer’s receipt of written notice specifying, in reasonable detail, the nature of the claimed material breach, then Customer acknowledges that this License & Agreement may be immediately terminated by Healthsoft. However, Healthsoft may immediately terminate this License & Agreement for the failure of Customer to pay Healthsoft in full for any fee(s) and/or charge(s) due to Healthsoft if payment is not rendered within ten (10) days after the payment was due; or for the insolvency of Customer. Customer acknowledges that any such termination shall be without prejudice to any other rights and remedies that Healthsoft may have at law or in equity.

5. Term. This License & Agreement shall become effective as of the date signed by both parties and shall for the period designated in the SOW (the “Term”), or for a period of one (1) year from such effective date. The License & Agreement shall automatically renew for additional Terms, unless and until either party gives sixty (60) days written notice prior to the end of the existing Term to the other of its intent to terminate this License & Agreement.

6. Privacy Policy. All information obtained by Healthsoft through, or arising from, this License & Agreement or Customer’s use of the RDBS Technology, shall be done in accordance with applicable privacy legislation, the HIPAA Business Associate Agreement and Healthsoft’s privacy policy.

7. WAIVER OF WARRANTIES. Healthsoft warrants for a period of ninety (90) days from the date of completion, installation or delivery of the RDBS Technology, as applicable, that: (i) the RDBS Technology was performed in a good and workmanlike manner consistent with practices employed by persons knowledgeable in the field of data backup services; and (ii) that any data backup services are free from material defects in workmanship and materials. In the event of a breach by Healthsoft of the foregoing warranty of which Customer notifies Healthsoft in writing during the warranty period, Healthsoft’s sole obligation and Customer’s exclusive remedy shall be for Healthsoft to correct the portion of the RDBS Technology that does not conform to such warranty. In the event Healthsoft is unable to make such corrections, the sole remedy of Customer and Healthsoft’s sole obligation shall be reimbursement of the compensation paid to Healthsoft for the RDBS Technology giving rise to such warranty failure. This limited warranty with respect to any RDBS Technology shall be voided in the event Customer: (i) makes additions to, alters, modifies, enhances, repairs or disassembles the RDBS Technology, or fails to maintain the hardware on which the RDBS Technology operates in good working order, or changes the environment in which the RDBS Technology operates; (ii) uses the RDBS Technology in a manner for which it was not designed, or in an incompatible operating environment; or (iii) mishandles, abuses, misuses or damages the RDBS Technology or the hardware on which or the environment in which the Software operates. THE LIMITED WARRANTY STATED IN THIS SECTION AND THE REMEDIES FOR A FAILURE OR BREACH OF SUCH LIMITED WARRANTY ARE EXCLUSIVE. THEY ARE GIVEN TO CUSTOMER IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH HEALTHSOFT SPECIFICALLY DISCLAIMS.

IN NO EVENT WILL HEALTHSOFT AND/OR HEALTHSOFT’S SUPPLIERS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO OR THROUGH CUSTOMER FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, OR OTHER ECONOMIC DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY, AS A RESULT OF USE OR INABILITY TO USE THE RDBS TECHNOLOGY OR BREACH OF ANY WARRANTY OR OTHER TERM OF THIS LICENSE & AGREEMENT, REGARDLESS OF WHETHER HEALTHSOFT AND/OR HEALTHSOFT’S SUPPLIERS WERE ADVISED, HAD OTHER REASON TO KNOW OR, IN FACT, KNEW OF THE POSSIBILITY THEREOF.

THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS LICENSE & AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE COUNTY OF DALLAS.

NO FURTHER WARRANTIES. EXCEPT AS SPECIFIED IN THE WARRANTIES SECTION OF THIS ATTACHMENT, HEALTHSOFT SHALL HAVE NO LIABILITY FOR THE SOFTWARE OR ANY SERVICES PROVIDED IN FURTHERANCE OF THIS AGREEMENT; HEALTHSOFT MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND HEALTHSOFT SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

8. DATA CONTENT DISCLAIMER

CUSTOMER EXPRESSLY RECOGNIZES THAT HEALTHSOFT DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, OR THIRD-PARTY PRODUCTS PROCESSED BY THE RDBS TECHNOLOGY OR SERVICES PROVIDED UNDER THIS LICENSE & AGREEMENT INCLUDING, BUT NOT LIMITED TO, BACKUP INFORMATION. HEALTHSOFT DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR ENDORSEMENT TO CUSTOMER OR ANY THIRD PARTY WHATSOEVER WITH REGARD TO ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED IN CONJUNCTION WITH THIS LICENSE & AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF: (1) MERCHANTABILITY; (2) FITNESS FOR A PARTICULAR PURPOSE; AND (3) NON-INFRINGEMENT. HEALTHSOFT SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY LOSS OF DATA OR ADVERSE IMPACT TO DATA.

9. GENERAL LIMITATION OF LIABILITY

IF HEALTHSOFT CONFIRMS A DEFECT REPORTED BY CUSTOMER IN THE UNALTERED RDBS TECHNOLOGY, HEALTHSOFT WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY THE NONCONFORMANCE. HEALTHSOFT DOES NOT WARRANT THAT THE OPERATION OR UTILIZATION OF ANY RDBS TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES IT GUARANTEE THAT ITS REMEDIAL EFFORTS WILL CORRECT ANY NONCONFORMANCE. IF THE RDBS TECHNOLOGY FAILS TO PERFORM APPROPRIATELY IN ANY MANNER, AND HEALTHSOFT DOES NOT REMEDY SUCH FAILURE AS REQUIRED BY THIS SECTION, HEALTHSOFT’S OBLIGATION AND LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR SUCH FAILURE SHALL BE LIMITED TO THE REFUND OF THE FEES PAID WITHIN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO SUCH FAILURE OR TEN ($10.00) U.S. DOLLARS, WHICHEVER IS LESS, EXCLUDING REASONABLE AMOUNTS FOR PAST USE OF SUCH RDBS TECHNOLOGY AFTER WHICH PAYMENT AND THE RETURN OF SUCH RDBS TECHNOLOGY TO HEALTHSOFT, IN WHICH EVENT THIS AGREEMENT SHALL TERMINATE WITH RESPECT TO SUCH RDBS TECHNOLOGY. CUSTOMER EXPRESSLY RECOGNIZES AND ACKNOWLEDGES THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE RDBS TECHNOLOGY. THIS SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.

HEALTHSOFT’S (AND ITS PARENT COMPANY AND SUPPLIERS’) ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY AND ALL CLAIMS ARISING UNDER, OR IN CONNECTION WITH, THIS LICENSE & AGREEMENT OR RELATED TO ANY ITEM OR SERVICE PROVIDED UNDER, OR IN CONNECTION WITH, THIS LICENSE & AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION (INCLUDING NEGLIGENCE), WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE REFUND OF THE FEES PAID WITHIN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO SUCH FAILURE OR TEN ($10.00) U.S. DOLLARS, WHICHEVER IS LESS, EXCLUDING REASONABLE AMOUNTS FOR PAST USE OF SUCH RDBS TECHNOLOGY. CUSTOMER EXPRESSLY RECOGNIZES AND ACKNOWLEDGES THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE RDBS TECHNOLOGY.

10. EXCLUSION OF DAMAGES

IN NO EVENT SHALL HEALTHSOFT (OR ANY OF ITS SUPPLIERS) BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, OR LOST BUSINESS IN CONNECTION WITH THE USE OF ANY RDBS TECHNOLOGY OR ANY OTHER ITEM OR SERVICE PROVIDED UNDER THIS LICENSE & AGREEMENT, NOR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, NOR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS LICENSE & AGREEMENT OR ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER THIS LICENSE & AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE (INCLUDING NEGLIGENCE), EVEN IF HEALTHSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. EXCLUSIVE INTELLECTUAL PROPERTY INFRINGEMENT REMEDY

SHOULD ANY PORTION OF THE RDBS TECHNOLOGY BECOME, OR IN HEALTHSOFT’S SOLE OPINION BE LIKELY TO BECOME, THE SUBJECT OF A CLAIM OF INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION AS SET FORTH HEREIN, HEALTHSOFT SHALL, AT ITS OPTION AND EXPENSE: (A) OBTAIN FOR CUSTOMER THE RIGHT TO CONTINUE USING THE RDBS TECHNOLOGY; (B) REPLACE OR MODIFY THE RDBS TECHNOLOGY SO ITS USE BECOMES NON-INFRINGING OR OTHERWISE LAWFUL; OR (C) TERMINATE THIS LICENSE & AGREEMENT WITH RESPECT TO THE INFRINGING PORTION OF THE RDBS TECHNOLOGY AND REFUND ALL FEES PAID BY CUSTOMER FOR THE INFRINGING PORTION OF THE RDBS TECHNOLOGY, LESS A REASONABLE ALLOWANCE FOR PAST USE. THIS SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT.

12. GENERAL

FORCE MAJEURE. HEALTHSOFT SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING SERVICES, OR ANY OTHER OBLIGATION UNDER THIS LICENSE & AGREEMENT, NOR FOR ANY DAMAGES SUFFERED BY CUSTOMER BY REASON OF SUCH FAILURE OR DELAY WHICH IS, INDIRECTLY OR DIRECTLY, CAUSED BY WAR, TERRORIST ACT, STRIKE, RIOT, NATURAL CATASTROPHE OR OTHER ACT OF GOD OR ANY OTHER CAUSE BEYOND HEALTHSOFT’S REASONABLE CONTROL. THIS LICENSE & AGREEMENT SHALL BE GOVERNED BY THE TERMS AND PROVISIONS OF THE SOW AND MASTER SERVICE AGREEMENT TO WHICH THIS LICENSE & AGREEMENT IS AN ANNEX. PROVISIONS CONTAINED HEREIN, WHICH CONFLICT WITH ANY PROVISION OF THE MASTER SERVICE AGREEMENT IS AN ANNEX SHALL GOVERN THE PROVISIONS OF THE RDBS.

GOVERNMENT END-USER NOTICE. THE SOFTWARE IS A “COMMERCIAL ITEM,” AS THAT TERM IS DEFINED AT 48 C.F.R. § 2.101, CONSISTING OF “COMMERCIALC OMPUTER SOFTWARE” AND “COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION,” AS SUCH TERMS ARE USED IN 48 C.F.R. § 12.212 AND 48 C.F.R. § 227.7202, AS APPLICABLE. CONSISTENT WITH 48 C.F.R. §§ 12.212, 227.7202-1 THROUGH 227.7202-4, THE COMMERCIAL COMPUTER SOFTWARE AND COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION ARE BEING LICENSED TO U.S. GOVERMNENT END-USERS (A) ONLY AS COMMERCIAL ITEMS AND (B) WITH ONLY THOSE RIGHTS AS ARE GRANTED TO ALL OTHER END-USERS PURSUANT TO THE TERMS AND CONDITIONS HEREIN.

EXPORT RESTRICTIONS. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND/OR SERVICES ARE SUBJECT TO UNITED STATES EXPORT CONTROL LAWS. CUSTOMER SHALL COMPLY WITH ALL APPLICABLE EXPORT LAWS, OBTAIN ALL APPLICABLE EXPORT LICENSES AND WILL NOT EXPORT OR RE-EXPORT ANY PART OF THE SOFTWARE PRODUCTS TO ANY COUNTRY IN VIOLATION OF SUCH RESTRICTIONS OR ANY COUNTRY THAT MAY BE SUBJECT TO AN EMBARGO BY THE UNITES STATES. BOTH PARTIES SPECIFICALLY AGREE THAT THE U.N. CONVENTION ON THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO, AND ALL ACTION PERFORMED IN FURTHERANCE OF, THIS AGREEMENT.

AUDIT. DURING THE TERM OF THIS AGREEMENT, CUSTOMER WILL MAINTAIN RECORDS REASONABLY REQUIRED TO VERIFY ITS COMPLIANCE WITH THIS AGREEMENT. UPON AT LEAST THIRTY (30) CALENDAR DAYS NOTICE TO CUSTOMER, AND NOT LESS THAN TWELVE (12) MONTHS SINCE A PRIOR AUDIT, HEALTHSOFT MAY AUDIT AND INSPECT THE APPLICABLE RECORDS OF CUSTOMER, AT CUSTOMER’S PRINCIPAL PLACE OF BUSINESS, DURING CUSTOMER’S NORMAL BUSINESS HOURS AND IN SUCH A MANNER AS TO AVOID UNREASONABLE INTERFERENCE WITH CUSTOMER’S BUSINESS OPERATIONS. IN THE EVENT THAT HEALTHSOFT DETERMINES THAT CUSTOMER HAS UNDERPAID ANY PAYMENT DUE UNDER THIS AGREEMENT, HEALTHSOFT SHALL NOTIFY CUSTOMER IN WRITING OF THIS ALLEGED DISCREPANCY. IN THE EVENT THAT SUCH AUDIT DISCLOSES AN UNDISPUTED

UNDERPAYMENT BY CUSTOMER IN EXCESS OF FIVE PERCENT (5%) IN ANY AUDIT PERIOD, CUSTOMER SHALL REIMBURSE HEALTHSOFT FOR SUCH AUDIT EXPENSES AND UNDERPAYMENT. ANY UNDISPUTED UNDERPAYMENT BY CUSTOMER SHALL BE PAID TO HEALTHSOFT (PLUS INTEREST AT THE LESSER OF ONE AND A HALF PERCENT (1.5%) PER MONTH OR THE HIGHEST RATE PERMITTED BY LAW), WITHIN THIRTY (30) CALENDAR DAYS OF SUCH DETERMINATION.

13. NOTICES

Notices, authorizations and other official communications under this License & Agreement shall be transmitted in writing by prepaid United States certified mail or Canada Post registered mail, return receipt requested, or overnight receipted courier, to Healthsoft, Attn: Operations Manager, at the address set forth above and to Customer, to the billing address and attention of the person who executed this License & Agreement for Customer. Any notice given pursuant to this Section shall be deemed to have been received, in the case of certified mail, on the date of receipt as evidenced by the U.S. Postal Service return receipt card and, in the case of overnight courier, on the next business day after sending, unless documented otherwise by recipient.

14. APPLICABLE LAW

The rights and obligations of the parties and all interpretations and performance of this License & Agreement shall be governed in all respects by the laws of the State of Texas except for its rules with respect to the conflict of laws. The parties hereby agree to the exclusive jurisdiction of the Courts or competent jurisdiction of the State of Texas in any proceeding hereunder.

15. WAIVER

Except as expressly provided for herein, failure by either party to require performance by the other party or to claim a breach of any provision of this License & Agreement will not be construed as a waiver of any right accruing hereunder to any subsequent breach, and will not affect the applicability or enforceability of this License & Agreement or any part hereof, or prejudice either party regarding any subsequent action.

16. INVALIDITY

If any provision of this License & Agreement is held invalid, the remaining provisions shall continue in full force and effect and the parties shall substitute for the invalid provision which most closely approximates the economic effect and intent of the invalid provision.

17. BINDING ARBITRATION, DISPUTES

Except for Customer’s breach of this License & Agreement, the parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly through discussions between themselves at the operational level. In the event resolution cannot be reached, such dispute shall be negotiated between appointed counsel or senior executives of the parties who have authority to settle the dispute. The disputing party shall give the other party written notice of the dispute and if the parties fail to resolve the dispute within thirty (30) days either party may seek arbitration. All disputes arising out of or relating to this License & Agreement shall be finally settled by binding arbitration in Dallas, Texas and shall be resolved under the arbitration and related laws of the State of Texas . Notwithstanding the foregoing, all Customer causes of action must be brought against Healthsoft within one (1) year from the date such cause of action is accrued; otherwise, such cause of action is hereby waived by Customer. The Parties agree that this provision was considered when setting the consideration for the RDBS Technology.

18. ENTIRE AGREEMENT

This License & Agreement, including but not limited to any SOWs, constitute the entire agreement between Healthsoft and customer with respect to the subject matter hereof and supersede all previous negotiations, proposals, commitments, writings, advertisements, publications and understandings of any nature whatsoever and in any manner whatsoever relating thereto. No agent, employee or representative of Healthsoft has any authority to bind Healthsoft to any affirmation, representation or warranty concerning the RDBS Technology and unless such affirmation, representation or warranty is specifically included with this License & Agreement, it shall not be enforceable by Customer or any assignee or sublicense of Customer. Any terms and conditions on any Customer purchase order form or other document issued by Customer to implement this License & Agreement which are in addition to or in conflict with the terms and conditions of this License & Agreement shall be null and void, even if acknowledged in writing by Healthsoft. No change, amendment or modification of this License & Agreement shall be effective unless made in writing and signed by the authorized representatives of both parties.

SOFTWARE LICENSE FOR HEALTHSOFT PRODUCTS