Customer Agreement

Our terms and conditions of service

By clicking the "I accept" button displayed as part of the ordering process, you agree to the following terms and conditions (the "Agreement") governing your use of Kareo's online service (the "Software Service"). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term "Customer" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must NOT click the "I accept" button and may not use the Software Service.

RECITALS

WHEREAS, Vendor is engaged in the development, marketing, selling, and support of software for the healthcare industry; and

WHEREAS, Customer is a practice management consultant, third-party medical billing company, medical practice, hospital, or other healthcare organization.

WHEREAS, Vendor desires to provide Customer, and Customer desires to use, its online service, which includes one or more software applications and data encryption, transmission, access and storage upon the terms and conditions set forth in this Agreement.

NOW, THEREFORE, the parties hereto, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agree as follows:

AGREEMENT

1. Definitions

“Acceptable Use Policy” means Vendor’s acceptable use policy as posted on the World Wide Web located at http://www.kareo.com/ or http://www.kareo.com/company/policies/ regarding use of the Software Service.

“Basic Edition” means the version of Vendor’s Software Service, the description and minimum list of features included are attached hereto in Exhibit A.

“Business Continuity Plans” means Vendor’s backup, disaster recovery, and business continuity procedures, protocols, and specifications, attached hereto as Exhibit D.

“Content” means data, materials, documentation, text, pictures, audio and visual information, and similar works of authorship contained or made available to Customer in the course of using the Software Service, and does not include Customer Data and the data of Customer’s clients.

"Clearinghouse Partners" means any third-party electronic clearinghouse service provider with which Vendor has a business relationship to provide and resell electronic connectivity to government and commercial insurance payers for standardized healthcare transactions, such as electronic claims processing, electronic remittance advice, and more.

“Customer Data” means any data, information or material provided or submitted by Customer, or Customer’s clients, to the Software Service in the course of using the Software Service.

“Data Conversion Fees” means any fees that Vendor charges Customer for the conversion of data into the Software Service.

“Electronic Clearinghouse Fees” means any fees that Vendor charges Customer for providing electronic clearinghouse services.

“End User License Agreement” means Vendor’s end user license agreement, which sets forth the obligations with which the users of the Software Service must comply, attached hereto as Exhibit E as may be modified by Kareo from time to time.

“Enterprise Edition” means the version of Vendor’s Software Service, the description and minimum list of features included are attached hereto in Exhibit A.

“Excess Data Storage Fees” means any fees that Vendor charges Customer for data storage space in excess of the monthly allowance provided to Customer.

“Intellectual Property Rights” means all inventions, unpatented inventions, patent applications, patents, design rights, copyrights, developments, trademarks, service marks, trade names, shop rights, licenses, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“Mid-Level Provider” means any Provider that is a nurse practitioners, physician assistant, physical therapist, occupational therapist, respiratory therapist, registered dietician, social worker, or mid-wife.

“Normal Provider(s)” means any Provider that is authorized to directly bill Medicare and other commercial insurance companies for healthcare services rendered to patients. This includes, but is not limited to, healthcare professionals that hold a degree of M.D., D.O., D.C., or Ph.D.

"Prepayment Schedule" means the monthly, quarterly, semi-annual, or annual schedule by which Customer has agreed to pre-pay for Subscription and Support services under Customer’s account.

"Provider(s)" means any healthcare professional that provides billable services to patients whom is an employee, customer, or has an employment, contractor, or agent relationship with a customer, for which the Service organizes information and provides medical billing and practice management.

“Service Level Agreement” means Vendor’s standards for operation of the Software Service and the resolution of problems reported to Vendor’s customer support help desk, attached hereto as Exhibit C.

“Setup Fees” means any fees that Vendor charges Customer for setup services.

“Software Service” means one or more software applications and data encryption, transmission, access and storage, that are part of Vendor’s online medical practice management, electronic billing, and other healthcare information technology services developed, operated, and maintained by Vendor, accessible via http://www.kareo.com/ or another designated website or IP address, Internet-based software programs to which Customer is granted access under this Agreement, including the Kareo Technology and the Content.

“Subscription Fees” means any fees that Vendor charges Customer for monthly licenses to access and use the Software Service.

“Team Edition” means the version of Vendor’s Software Service, the description and minimum list of features included are attached hereto in Exhibit A.

“Training Fees” means any fees that Vendor charges Customer for providing training to Customers.

“Trial Edition” means the version of Vendor’s Software Service that is designed to provide a free 30-day trial period for Customer to evaluate the Software Service, the description and minimum list of features included are attached hereto in Exhibit A.

"User(s)" means Customer’s employees, representatives, consultants, contractors, clients, or agents who are authorized to use the Software Service and have been supplied user identifications and passwords by Customer (or by Vendor at Customer’s request).

“Vendor Trademark” means Vendor’s trademarks that are valid, in existence and registered with U.S. Patent and Trademark Office.

“Vendor Materials” means all Software Services, (including all demonstration and other copies thereof), sample data, user materials, marketing materials, agreements and other documentation provided or made accessible by Vendor to Customer.

2. License Grant & Restrictions

2.1 License to Use Software Service

Vendor hereby grants to Customer a non-exclusive, non-transferable, worldwide right to use, and authorize the access and use of, the Software Service, during the term and to the extent expressly set forth and upon the terms and conditions herein only for the following uses: (i) Customer’s own internal business purposes, which shall also include use by its subcontractors; and (ii) use by Customer’s clients, for which Customer provides medical billing, collection, and other administrator support services. All rights not expressly granted to Customer are reserved by Vendor.

2.2 Restrictions

Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Service except to an end user under the terms and conditions set forth in this section; (b) authorize the access and use of the Software Service to any Customer that has not agreed to be bound by the Vendor End User License Agreement then in effect; (c) use the Software for any purpose not expressly permitted herein; (d) decompile, disassemble, or otherwise reverse-engineer the Software Service; (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance of the Software Service or the data contained therein; or (i) attempt to gain unauthorized access to the Software Service or its related systems or networks.

2.3 Reservation of Rights

Vendor reserves all rights in the Software Service, the Vendor Trademark, and other Vendor materials and intellectual property rights not expressly granted herein.

3. Fees and Payment Terms

3.1 Fees

Customer agrees to pay to Vendor the fees described and in the amount set forth in Exhibit B (Pricing) of this Agreement. Notwithstanding anything to the contrary in the Agreement, all fees are subject to change by Vendor, with thirty (30) days written notice and in Vendor’s sole discretion.

3.2 Payment Terms

3.2.1 Monthly Prepayment

If Customer has elected a monthly Prepayment Schedule, then Customer agrees to the following payment terms: (a) Setup Fees are due and payable by Customer within five (5) business days of an order, (b) Subscription Fees are due and payable by Customer in advance of receiving access to the Software Services for a given month and shall be paid by Customer by the thirtieth (30th) day of the month prior to the month Customer receives access to the Software Services, (c) Support Fees are due and payable by Customer in advance of receiving support services for a given month and shall be paid by Customer by the thirtieth (30th) day of the month prior to the month Customer receives support services, (d) All Training, Data Conversion, Data Interface, and other fees for professional services shall be due and payable by Customer in advance or receiving such services, and e) All other amounts payable hereunder, including, but not limited to, Electronic Clearinghouse Fees, Excess Data Storage Fees, Patient Statement Mailing Fees, and Paper Claim Mailing Fees shall be due and payable by Customer by the thirtieth (30th) day of the month following the month that such services were rendered.

3.2.2 Quarterly Prepayment

If Customer has elected a quarterly Prepayment Schedule, then Customer agrees to the following payment terms: (a) Setup Fees are due and payable by Customer within five (5) business days of an order, (b) Subscription Fees are due and payable by Customer in advance of receiving access to the Software Services for a given quarter and shall be paid by Customer by the thirtieth (30th) day of the month prior to the quarter Customer receives access to the Software Services, (c) Support Fees are due and payable by Customer in advance of receiving support services for a given month and shall be paid by Customer by the thirtieth (30th) day of the month prior to the quarter Customer receives support services, (d) All Training, Data Conversion, Data Interface, and other fees for professional services shall be due and payable by Customer in advance or receiving such services, and e) All other amounts payable hereunder, including, but not limited to, Electronic Clearinghouse Fees, Excess Data Storage Fees, Patient Statement Mailing Fees, and Paper Claim Mailing Fees shall be due and payable by Customer by the thirtieth (30th) day of the month following the month that such services were rendered.

3.2.3 Semi-Annual Prepayment

If Customer has elected a semi-annual Prepayment Schedule, then Customer agrees to the following payment terms: (a) Setup Fees are due and payable by Customer within five (5) business days of an order, (b) Subscription Fees are due and payable by Customer in advance of receiving access to the Software Services for a given six (6) month period and shall be paid by Customer by the thirtieth (30th) day of the month prior to the six (6) month period Customer receives access to the Software Services, (c) Support Fees are due and payable by Customer in advance of receiving support services for a given six (6) month period and shall be paid by Customer by the thirtieth (30th) day of the month prior to the six (6) month period Customer receives support services, (d) All Training, Data Conversion, Data Interface, and other fees for professional services shall be due and payable by Customer in advance or receiving such services, and e) All other amounts payable hereunder, including, but not limited to, Electronic Clearinghouse Fees, Excess Data Storage Fees, Patient Statement Mailing Fees, and Paper Claim Mailing Fees shall be due and payable by Customer by the thirtieth (30th) day of the month following the month that such services were rendered.

3.2.4 Annual Prepayment

If Customer has elected an annual Prepayment Schedule, then Customer agrees to the following payment terms: (a) Setup Fees are due and payable by Customer within five (5) business days of an order, (b) Subscription Fees are due and payable by Customer in advance of receiving access to the Software Services for a given twelve (12) month period and shall be paid by Customer by the thirtieth (30th) day of the month prior to the twelve (12) month period Customer receives access to the Software Services, (c) Support Fees are due and payable by Customer in advance of receiving support services for a given twelve (12) month period and shall be paid by Customer by the thirtieth (30th) day of the month prior to the twelve (12) month period Customer receives support services, (d) All Training, Data Conversion, Data Interface, and other fees for professional services shall be due and payable by Customer in advance or receiving such services, and e) All other amounts payable hereunder, including, but not limited to, Electronic Clearinghouse Fees, Excess Data Storage Fees, Patient Statement Mailing Fees, and Paper Claim Mailing Fees shall be due and payable by Customer by the thirtieth (30th) day of the month following the month that such services were rendered.

3.3 Billing

Customer agrees to provide Vendor with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to promptly update this information, but in no event later than 10 days, of any change to it. If Customer believes that its bill is incorrect, Customer must contact Vendor in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

3.4 Nonpayment and Suspension

In addition to any other rights granted to Vendor herein, Vendor reserves the right to suspend or terminate this Agreement and Customer’s access to the Software Service if Customer’s account becomes delinquent (falls into arrears) for more than thirty (30) days from the payment due date. Delinquent accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, and such interest shall begin to accrue after such balance is delinquent for thirty (30) days. Customer will not be charged for Software Service during any period of suspension, however, interest shall continue to accrue on any delinquent balance during such period of suspension until paid in full. In the event that Vendor does not receive full payment by Customer within sixty (60) days of the date a payment is due, such nonpayment by Customer shall constitute a material breach of this Agreement. If either party initiates termination of this Agreement, Customer will be obligated to pay the balance due on its account computed in accordance with the terms of this Agreement.

3.5 Taxes

Vendor’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Vendor’s income.

4. Customer’s Obligations

4.1 Customer Responsibilities

Customer is responsible for all activity occurring under its accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Software Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Vendor immediately of any unauthorized use of any password or account or any other known breach of security; (ii) restrict access and use of the Software Service by unauthorized users; and (iii) not impersonate another Vendor user or provide false identity information to gain access to or use the Software Service.

4.2 Customer Data

Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all Customer Data and Vendor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer.

5. Vendor's Obligations

5.1 End User Training and Support by Vendor

In the event that any Customer elects to receive support services related to the Software Service from Vendor by requesting such services in an order, then Vendor agrees to provide end user support to Customer upon the terms set forth in Exhibit B (Pricing) of this Agreement.

5.2 Maintenance

During the term of the Agreement, Vendor shall provide to Customer the same software updates; patch releases and new versions of the software that it makes generally available to its other customers. If Vendor modifies the Software Services for its customers generally, then Vendor reserves the right to modify the Software Services provided hereunder; provided, however, that if such modifications are substantive in nature so as to materially alter the benefits derived by Customer, then Customer shall have the right to terminate its subscriptions hereunder with respect to such affected application or Software Service by written notice to Vendor.

5.3 Service Level Agreement

As set forth in Exhibit C (Service Level Agreement) to this Agreement, Vendor’s Service Level Agreement sets forth standards for the resolution of problems reported to Vendor’s customer support help desk, as well as Service Level Credits awarded to Customer in the event that Vendor does not comply with these standards. In no event shall the cumulative total amount of the Service Credits for all Service Levels issued to Customer in any month exceed the monthly recurring charges invoiced to Customer for that month.

5.4 Business Continuity Plans

As set forth in Exhibit D (Business Continuity Plans) to this Agreement, Vendor’s Business Continuity Plans shall be monitored, tested, and drilled periodically by Vendor, with reasonable notice to all parties, in order to assure proper functioning in the event of a potential business interruption.

5.5 Customer Data

In the event that a) Customer terminates this Agreement, b) Customer has paid the outstanding balance on its account, and c) Customer provides written request to Vendor within ten (10) days of termination, then Vendor will make available to Customer a file containing a computer-readable representation of Customer's data within fifteen (15) days of Customer's request. These data will include patient demographics, financial data, and documents uploaded by Customer to the Software Service, and will be provided by Vendor to Customer in a format that can be reasonably used by a competent third-party software company or information technology consultant. In the event that Customer requests data in an alternate format, Vendor shall reserve the right to charge Customer a data conversion fee as described in Exhibit B (Pricing).

6. Confidentiality; Proprietary Rights and Information

6.1 Confidential Information

6.1.1 Vendor’s Confidential Information

Vendor’s Confidential Information includes without limitation any confidential and/or proprietary information concerning inventions, trade secrets, know-how, methods, processes, techniques, technologies, other technical, business and operational information, and information embodied in all related Intellectual Property Rights, in and to the Kareo Technology, the Software Service, any modifications, updates, copies, customizations, derivative works, augmentations, or translations thereto, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software Service.

6.1.2 Customer’s Confidential Information

Customer’s Confidential Information includes without limitation any confidential and/or proprietary information concerning Customer Data, inventions, trade secrets, know-how, methods, processes, techniques, technologies, other technical, business and operational information. Customer’s Confidential Information does not include any suggestions, ideas, enhancements requests, feedback, recommendations or other information provided to Vendor related to the Software Service.

6.1.3 Confidentiality Obligations

The parties acknowledge that in connection with the matters governed by this Agreement, they may receive, obtain, or have access to Confidential Information of each other. Except as otherwise provided herein, Confidential Information shall remain the exclusive property of the disclosing party, and neither party may use or disclose any Confidential Information of the other party to any third party. The parties agree to instruct their employees to keep confidential all Confidential Information. The parties agree that the following information is not Confidential Information within the meaning of this Agreement: 1) information that is or becomes part of the public domain through no act or omission of the receiving party, its employees, agents successors or assigns; 2) information that was lawfully disclosed to the receiving party by a third party having the right to disclose it; 3) information that was independently developed by the receiving party without use of or reference or reliance on the Confidential Information. 4) in the Party’s possession prior to disclosure hereunder; 5) disclosed by the Party pursuant to a written permission from the other Party to disclose (subject to any restrictions therein);or 6) required to be disclosed in a judicial or administrative proceeding, or as otherwise required to be disclosed by law.

6.2 Confidentiality of Patient Records

The parties agree to be bound by the terms of the HIPAA Business Associates Agreement attached hereto as Exhibit f. Furthermore, Vendor shall only disclose to and/or allow any entity or person to have access to Customer and its Client’s Protected Health Information, as defined in Exhibit F, who has a need to know such information for the purposes of fulfilling the obligations of this Agreement and has signed a copy of the attached Exhibit F. This requirement applies to Vendor and any and all of Vendor’s officers, employees, affiliates, agents, third party vendors, subcontractors and all others; including, but not limited to Savvis, back up sites, and all other vendors and suppliers of Vendor who potentially have access to confidential patient information or other protected health information as defined in the HIPAA business associates agreement attached.

6.3 Vendor Ownership

Vendor owns all worldwide right, title and interest, including all related Intellectual Property Rights, in and to the Kareo name and logo, in and to the product name, in and to the Kareo Technology, the Software Service, any modifications, updates, copies, customizations, derivative works, augmentations, or translations thereto, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software Service, the Kareo Technology or the Intellectual Property Rights owned by Vendor.

7. Term and Termination

7.1 Term

The term of this Agreement shall commence on the Effective Date and shall extend for an initial period of twelve (12) months, unless earlier terminated in accordance with this Agreement. Thereafter, the Agreement is automatically renewed for successive one (1) year terms, unless either party terminates this agreement no later than sixty (60) days prior to the end of initial, or each renewal term. The initial term and any renewal term will be collectively referred to as the “term” of the Agreement.

7.2 Termination for Cause

Either party may terminate if the other party materially breaches any provision of the Agreement, and such breach is not cured within thirty (30) days after demand for cure is made in writing. The parties also acknowledge that failure of Customer to make payments for invoiced amounts within sixty (60) days from the payment due date on any invoice shall be considered a material breach of this Agreement. Vendor may terminate the Agreement immediately if Vendor becomes aware of any unlawful use of the Software Service or any application; provided, the parties agree Vendor has no duty to monitor such unlawful use.

7.3 Effect of Termination

Upon expiration or termination of the Agreement, all rights granted to Customer relating to the Software Service shall terminate and revert automatically to Vendor. Within (30) days after the termination of this Agreement, each party shall return the other party’s Confidential Information.

8. Representations, Warranties, and Disclaimers

8.1 Mutual Warranties

Each party hereby represents and warrants to the other that (i) such party has the right, power and authority to enter into this Agreement, grant the licenses granted herein, and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between such party and any third party.

8.2 Customer Warranty

Customer represents and warrants that it (i) shall take reasonable commercial steps to have all of its users, employees, agents and independent contractors comply with this Agreement; (ii) will use and permit use of the Software Service only in accordance with the terms and conditions of this Agreement; (iv) shall authorize the access and use of the Software Service only to User’s that have agreed to be bound by the End User License Agreement then in effect;; and (v) will comply with all applicable laws, regulations, and ordinances in its marketing, distribution, and use of the Software Service.

8.3 Vendor Warranty

Vendor represents and warrants that it (i) shall take reasonable commercial steps to have all of its users, employees, agents and independent contractors comply with this Agreement; (ii) it will provide the Software Service in a manner consistent with applicable documentation and that the Software Service will perform substantially in accordance with the online help documentation under normal use and circumstance; (iii) the Software Service and related services and materials provided hereunder do not to the knowledge of Vendor management contain any viruses or disabling code; (iv) it shall take reasonable commercial steps to: (a) implement and adhere to the Business Continuity Plans as set forth in Exhibit D (Business Continuity Plans) and (b) perform its ongoing support services as set forth in Exhibit C (Service Level Agreement).

8.4 Disclaimer of Vendor Warranties

EXCEPT AS SET FORTH IN SECTION 8.3 (VENDOR WARRANTY) OF THIS AGREEMENT, VENDOR DOES NOT WARRANT OR REPRESENT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE SOFTWARE SERVICE SHALL MEET CUSTOMER’S REQUIREMENTS OR THAT CUSTOMER’S USE OF THE SOFTWARE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE OR IMMUNE FROM FRAUDULENT INTRUSION AND/OR UNAUTHORIZED USE OR DISCLOSURE. VENDOR ASSUMES NO RESPONSIBILITY FOR ASSURING THE PROPER AND LAWFUL USE OF THE SOFTWARE SERVICE BY CUSTOMER. VENDOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE SOFTWARE SERVICE, AND ANY SUCH WARRANTIES ARE DISCLAIMED.

EXCEPT AS SET FORTH IN SECTION 8.3 (VENDOR WARRANTY) OF THIS AGREEMENT, VENDOR ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE, OR TO STORE PROPERLY, DELIVERY, FAILURE TO DELIVER OR TIMELY DELIVERY OF CUSTOMER DATA. CUSTOMER ASSUMES THE ENTIRE RISK IN DOWNLOADING OR OTHERWISE ACCESSING ANY DATA, FILES OR OTHER MATERIALS OBTAINED FROM THIRD PARTIES AS A PART OF THE SERVICES.

VENDOR’S SOFTWARE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA.

EXCEPT AS SET FORTH IN SECTION 8.3 (VENDOR WARRANTY) OF THIS AGREEMENT HEREOF, VENDOR DOES NOT GUARANTEE THAT THE SOFTWARE SUPPORT SHALL IN ALL CASES MEET CUSTOMER’S REQUIREMENTS, AND VENDOR LIKEWISE DISCLAIMS ANY WARRANTY THAT THE SOFTWARE SUPPORT SHALL SUCCESSFULLY ACCOMPLISH THE SPECIFIC OBJECTIVES DESIRED BY THE CUSTOMER.

THE SOFTWARE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). VENDOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.

9. Indemnification

9.1 Vendor Indemnification

9.1.1 Intellectual Property Indemnification

Vendor shall indemnify, defend and hold harmless Customer, its customers, officers, directors, employees and agents (“Indemnitees”) against any third party suits, actions, demands, claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) and proceedings alleging that the Software Service infringes or misappropriates a third party’s United States intellectual property rights, and Vendor agrees to pay any damages finally awarded against Indemnitees by a court of competent jurisdiction that may result from any such third party claim; provided that (i) Indemnitees notify Vendor promptly in writing of the claim; (ii) Vendor has sole control of the defense and all related settlement negotiations; and (iii) Indemnitees provide Vendor (at Vendor’s request and reasonable expense) with all reasonably necessary assistance, information, and authority to perform these duties. To the extent that any delay by Indemnitees in notifying Vendor results in any cost, expense, or liability to Vendor which would otherwise have been avoided, Vendor shall be entitled to deduct such amount from sums paid or collect such amount from Customer.

9.1.2 Exclusions

Vendor shall have no liability for any claim of infringement based on or arising from (i) use of any version other than the latest commercially available version of the Software or Software Service made available to Indemnitees, to the extent the infringement would have been avoided by use of such version and provided that such version has been made available to Customer; (ii) modification, alteration or enhancement of the Software or Software Service by Indemnitees or any third party except as explicitly authorized or approved by Vendor in each instance; (iii) the reproduction, distribution, sale, importation or other exploitation of modifications of the Software or Software Service by Indemnitees, ; or (iv) the combination or use of the Software or Software Service furnished hereunder with materials not furnished or specifically specified by Vendor.

9.1.3 Alternatives

In the event the Software or Software Service is held to, or Vendor believes is likely to be held to, infringe or misappropriate, Vendor shall have the right at it’s sole option and expense to: (i) substitute or modify the Software or Software Service so that it is non-infringing, while retaining substantially equivalent features and functionality as set forth in the applicable documentation, or (ii) obtain for Customer a license to continue using the Software or Software Service. If neither of the foregoing options is reasonably practicable, then notwithstanding any other provision of this Agreement, Vendor may terminate this Agreement, and provide Customer with a refund of license fees paid during the preceding six (6) month period less a reasonable allowance for the period of time the Customer used the Software or Software Service.

9.1.4 Sole Obligation

The foregoing Vendor indemnity states the sole obligation and exclusive liability of Vendor, and Customer’s sole recourse and remedy, for any claim of infringement or misappropriation of an intellectual property right or proprietary right by the Vendor, Software or Software Service.

9.2 Customer Indemnification

Customer shall indemnify, defend, and hold harmless Vendor, its suppliers, licensors and affiliates and the directors, officers, employees and agents of the foregoing with respect to any and all claims, demands, damages, costs and expenses, including reasonable attorneys’ fees and litigation expenses, arising out of or as a result of Customer’s breach of the representations, warranties, obligations, covenants or agreements herein, or from legal proceedings threatened or instituted against Vendor, its suppliers, licensors and affiliates, or the directors, officers, employees and agents of the foregoing, as a result of any claims by third persons or entities against any of them arising from: (i) any claim, other than a third-party claim covered by Section 9.1.1 above, brought against Vendor by any third party, which claim arises out of Customer’s use, of the Software Services, (ii) any breach by Customer of Sections 2.1 or 2.1 of this Agreement, or (iii) any unauthorized use or distribution or re-distribution of the Software Services provided or delivered by Vendor in connection with this Agreement.

10. Limitations of Liability

NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, ANY PURCHASE ORDER OR ANY DOCUMENT RELATED TO THIS AGREEMENT TO THE CONTRARY: (i) NEITHER VENDOR (OR ITS AFFILIATES) NOR CUSTOMER (OR ITS AFFILIATES) SHALL BE LIABLE TO EACH OTHER FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, FOR LOST PROFITS, FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR FOR LOSS OF DATA, GOODWILL OR ANY OTHER DAMAGE TO INTANGIBLE PERSONAL PROPERTY, WHETHER INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF THE SOFTWARE SERVICE OR OTHERWISE OR, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF THE OTHER PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) , IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER, FOR ANY CAUSE ARISING OUT OF OR RELATED TO VENDOR'S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT, OR OTHERWISE, EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE HEREUNDER TO VENDOR IN THE TWELVE MONTH (12) PERIOD PRIOR TO THE TIME IN WHICH THE DIRECT DAMAGES ARE INCURRED. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11. Export Controls and Restriction Rights

THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SERVICE, CONTENT, KAREO TECHNOLOGY OR INFORMATION ABOUT SUCH SERVICE, WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. CUSTOMER SHALL NOT EXPORT THE SERVICE INCLUDING, WITHOUT LIMITATION, CONTENT, KAREO TECHNOLOGY AND INFORMATION ABOUT THE SERVICE WITHOUT THE WRITTEN CONSENT OF KAREO AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.

The Services are a commercial product, developed at private expense, and provided with restricted rights. Use, reproduction, release, modification or disclosure of the Services, or any part thereof, including technical data, by the Government is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense (“DFARS”) 227.7202 for military agencies.

12. Miscellaneous

12.1 Entire Agreement

This Agreement and all attachments (which collectively are considered the “Agreement”) comprises the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. Except for Vendor’s reservation of its right, as provided in this Agreement, to modify certain terms and conditions of this Agreement, any amendment, change or modification shall be in writing and signed by both parties.

12.2 Notice

Vendor may give notice by means of a general notice on the Software Service, electronic mail to Customer’s e-mail address on record in Vendor’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Vendor’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to Vendor (such notice shall be deemed given when received by Vendor) at any time by any of the following: letter sent by confirmed facsimile to Vendor at the following fax number: (949) 861-6286; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Vendor at the following addresses: Kareo Inc, 18301 Von Karman Avenue, Suite 1050, Irvine, CA 92612, addressed to the attention of: Chief Financial Officer. Either party may change their contact information provided that they give written notice to the other party stating the new information.

12.3 Governing Law; Dispute Resolutions

Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted by either or both parties within thirty (30) days after such dispute, controversy or claim arises to a senior executive of each party, which executives shall meet with one another in person and endeavor through their good faith efforts to find an amicable settlement of such dispute, controversy or claim within sixty (60) days of submission of the matter to them. All reasonable legal fees and court costs required to settle any or resolve any such matters will be awarded to the prevailing party.

12.4 Assignments

Customer may not assign this Agreement or any right or obligation hereunder, directly, indirectly, by operation of law or otherwise, without Vendor’s prior written consent, and any attempt to do so will be void and of no force or effect. Any change of control of Customer will be considered an assignment. This Agreement is freely assignable and/or transferable by Vendor without the consent of Customer. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.

12.5 No Waiver

The failure of Vendor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.

12.6 Relationship of the Parties

No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement or use of the Software Service.

12.7 Marketing

The parties agree that Vendor has the right to use Customer’s name as a Vendor customer in Vendor’s promotional, advertising and marketing materials and campaigns.

12.8 Non-solicitation of Employees

Customer agrees during the term of this agreement, and for twenty-four (24) months thereafter, not to solicit for hire or hire as a consultant, employee, or otherwise any current or former employee of Vendor who had involvement with the performance of the agreement.

12.9 Force Majeure

Vendor shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services for the time and to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, any act of God, labor dispute or disturbance, material shortage or rationing, fire, storm, tornado, tidal wave, vandalism, riot, explosion, power outage earthquake, flood, civil disturbance, sabotage, act of war, act of terrorism, governmental action or regulation, communication or utility failure or casualty caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, or storm (collectively “Force Majeure Items”).

12.10 Survival

The provisions of Sections 2.3, 3, 6, 7, 12.8, and any payment obligations of either party shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement.

EXHIBIT A - KAREO SERVICES

A list of Kareo services can be found at: http://www.kareo.com/products/howtobuy/compare.

EXHIBIT B - PRICING

1. Setup Fees

Vendor’s setup fees includes the setup of certain master data tables including the CPT code master data table, ICD-9 code master data table, and default security group and policy settings. Vendor’s setup fees are as follows:

Price: No Charge

2. Subscription Fees

Vendor’s subscription fees include the monthly license to use the Software Services. Vendor charges a monthly subscription fee per Provider associated with Customer’s account. Vendor’s subscription fees are as follows:

2.1 Trial Edition

Price: Free for 30 Days

2.2 Basic Edition

Price: $69.00 per month per Provider

2.3 Team Edition

Price: $129.00 per month per Provider

2.4 Enterprise Edition

Price: $199.00 per month per Provider

2.5 Discounts

Vendor shall charge one-half the normal subscription fee for any Mid-Level Provider.

2.6 Managing Subscriptions

Vendor shall charge a monthly subscription fee based upon the number of active Provider records associated with Customer’s account. Customer is responsible for adding and/or removing Providers from its account prior to the 1st day of each month for the Subscription Editions in that month. Customer may subscribe to different Subscription Editions for each practice associated with Customer’s account provided, however, that all Providers within a Practice must be subscribed to the same Subscription Edition. Vendor shall charge Customer a subscription fee for partial months for new Provider records added (or marked active), however, Vendor does not issue credits for partial months for Provider records removed (or marked inactive). The terms of this section may be modified by an order form signed by the Customer, which amends this Agreement.

3. Support Fees

If elected by a Customer, Vendor will provide to Customer with support for the Software Service via email messages to Vendor. Customer shall be responsible for payment to Vendor for any Support Services under any of the following and at the following rates:

3.1 Premium Email Support - Level 1

Under this support package, Vendor shall provide Customer with email support services during Normal Business Hours up to an aggregate of three (3) Cases per month, with a target response time of two (2) business days.

Price: $99 per month

3.2 Premium Email Support - Level 2

Under this support package, Vendor shall provide Customer with email support services during Normal Business Hours up to an aggregate of ten (10) Cases per month, with a target response time of two (2) business days.

Price: $299 per month

3.3 Premium Email Support - Level 3

Under this support package, Vendor shall provide Customer with email support services during Normal Business Hours up to an aggregate of twenty (20) Cases per month, with a target response time of two (2) business days.

Price: $499 per month

3.4 Premium Email Support - Level 4

Under this support package, Vendor shall provide Customer with email support services during Normal Business Hours up to an aggregate of forty (40) Cases per month, with a target response time of two (2) business days.

Price: $899 per month

3.5 Scheduled Phone Support

Vendor shall provide scheduled telephone support to Customer on a per-incidence basis in one hour blocks of time. Customer may request scheduled phone support with one business day advance notice to Vendor, and Vendor shall make every commercially reasonable effort to provide such scheduled phone support to Customer during Normal Business Hours.

Price: $150 per hour

3.6 Other Terms

For the purposes of this section, a “Case” is defined as any request by Customer for software support services other than i) a software flaw verified by Vendor, or ii) a request for any other professional services such as data import, data interface, training, encounter forms, or any other services subject to other fees. If Customer exceeds the monthly allowance of Cases in any given month, then Vendor shall charge Customer $49.00 per case in excess of Customer’s monthly allowance.

If Cases provided under any support plan are not used in a given month, the Cases may not be carried forward for use in future months. Business Hours are the hours of 8:00 am through 5:00 pm, Pacific Time, Monday through Friday, except holidays. The support package shall commence on the date ordered by the Customer and shall continue for a minimum term of twelve (12) months. Customers may upgrade support packages at any time. Notwithstanding anything to the contrary in the Agreement, all rates for Support Services are subject to change by Vendor, without notice and in Vendor’s sole discretion.

4. Training Fees

If requested by Customer, then Vendor agrees to provide additional training upon pricing as follows.

4.1 Self-Paced Training Videos

Vendor shall make available one or more self-paced training videos.

Price: No charge

4.3 Private Training

Vendor shall offer private, one-on-one training to Customer.

Price: $150.00 per hour for web-based training with 3 hour minimum, or $1,500.00 per day plus travel expenses for onsite training

5. Data Conversion Fees

If elected by a Customer, Vendor will provide technical services to convert Customer Data into the Software Service.

5.1 Supported Competitor

If the Customer provides Customer Data in a format that matches the format of one of Vendor’s supported competitors, then Vendor shall provide data conversion for a flat rate up to 250,000 patient data records.

Price: $1,000 per practice

5.2 Custom Format

If Customer provides Customer Data in a format other than Vendor’s specification, then Vendor reserves the right to charge Customer for data conversion services on an hourly basis.

Price: $150.00 per hour, 3 hour minimum

6. Data Interface Fees

If elected by Customer, Vendor will provide technical services to setup a data interface with a third-party software application or system and Vendor shall charge Customer for data interface services on an hourly basis.

Price: $150.00 per hour, 3 hour minimum

7. Miscellaneous Fees

7.1 Custom Form Fees

If elected by Customer, Vendor agrees to provide programming services to create custom encounter and other forms that may be printed directly from the Software Service upon the following pricing:

Price: $250 per form for modifications to existing forms, $1,500 per form for new custom forms

7.2 Co-Branding Fees

If elected by Customer, Vendor agrees to provide an opportunity for Customer to display its brand name on the sign-on screen to the Software Service upon the following pricing:

Price: $1,000 for initial setup, $500 per change request

7.3 Excess Data Storage Fees

The maximum disk storage space provided to Customer at no additional charge is equal to 100 MB per provider per month for Enterprise Edition subscriptions, 75 MB per provider per month for Team Edition subscriptions, 50 MB per provider per month for Trial Edition subscriptions, and 0MB for Solo Edition subscriptions. If the amount of disk storage required exceeds the maximum disk storage space, Customer will be charged the amount set forth immediately following this paragraph. Vendor will use reasonable efforts to notify Customer when the average storage used per provider reaches approximately 90% of the maximum (additionally Vendor shall automate notification and reporting related to such storage usage); however, any failure by Vendor to so notify Customer shall not affect Customer’s responsibility for such additional storage charges.

Price: $15.00 per month for each 100 MB in additional storage space

8. Electronic Clearinghouse Fees

If elected by a Customer, Vendor will provide electronic clearinghouse services through a reseller relationship with Vendor’s Clearinghouse Partners upon the following terms.

8.1 Electronic Claims Submission (ANSI 837)

Electronic claims submission service includes sending electronic claims in the ANSI 837 format to ’Vendor's Clearinghouse Partners. Vendor shall charge Customer a fee each electronic claim transaction based upon the Subscription Edition to which each Provider is subscribed, as follows:

8.1.1 Enterprise Edition

Vendor shall provide Customer a monthly allowance of 600 electronic claims per provider per month free-of-charge for any Provider on the Enterprise Edition. Thereafter, Vendor shall charge Customer as follows:

Price: $0.12 per claim

8.1.2 Team Edition

Vendor shall provide Customer a monthly allowance of 300 electronic claims per provider per month free-of-charge for any Provider on the Team Edition. Thereafter, Vendor shall charge Customer as follows:

Price: $0.12 per claim

8.1.3 Basic Edition

Vendor does not provide a monthly allowance of electronic claims for any Provider on the Basic Edition. Vendor shall charge Customer as follows:

Price: $0.25 per claim

8.1.4 Other Terms

Customer shall receive one-half the normal monthly allowance of electronic claim transactions for any Mid-Level Providers.

8.2 Electronic Remittance Advice (ANSI 835)

Electronic remittance advice service includes receiving electronic remittance advice messages from Vendor’s Clearinghouse Partners in the ANSI 835 format. Vendor shall charge Customer a fee for each electronic remittance transaction based upon the Subscription Edition to which each Provider is subscribed, as follows:

8.2.1 Enterprise Edition

Vendor shall provide Customer a monthly allowance of 200 electronic remittance transactions per provider per month free-of-charge for any Provider on the Enterprise Edition. Thereafter, Vendor shall charge Customer as follows:

Price: $0.12 per remittance transaction

8.2.2 Team Edition

Vendor shall provide Customer a monthly allowance of 100 electronic remittance transactions per provider per month free-of-charge for any Provider on the Team Edition. Thereafter, Vendor shall charge Customer as follows:

Price: $0.12 per remittance transaction

8.2.3 Basic Edition

Vendor does not provide a monthly allowance of electronic remittance transactions for any Provider on the Basic Edition. Vendor shall charge Customer as follows:

Price: $0.25 per remittance transaction

8.1.4 Other Terms

Customer shall receive one-half the normal monthly allowance of electronic remittance transactions for any Mid-Level Providers.

8.3 Paper Claims Mailing Services

Paper claims mailing services includes sending batches of paper claims to Vendor’s Clearinghouse Partners for printing and mailing (postage is included). Customer will be charged at the following rates:

Price: $0.37 per paper claim

8.4 Real-Time Patient Eligibility

Customer will be charged at the following rates:

Price: $0.30 per transaction

8.5 Price Changes

Customer acknowledges and agrees that Vendor is providing clearinghouse services through a business relationship with one or more Clearinghouse Partners, under which, Vendor is reselling services to Customer. Therefore, in the event that any of Vendor’s Clearinghouse Partners changes the price it charges Vendor for the Clearinghouse Services outlined above, Vendor reserves the right to adjust its prices for Clearinghouse Services by a proportional amount.

9. Patient Statement Mailing Services

If elected by a Customer, Vendor will provide patient statement mailing services through a reseller relationship with PSC Info Group upon the following terms. Patient statement mailing services includes sending batches of patient statements to PSC Info Group for printing and mailing (postage is included). Customer will be charged at the following rates:

Price: $0.69 per each first page, $0.12 per each additional page

Customer acknowledges and agrees that Vendor is providing patient statement mailing services through a business relationship with PSC Info Group, under which, Vendor is passing through the costs of PSC Info Group services to Customer. Therefore, in the event that PSC Info Group changes the price it charges Vendor for the patient statement mailing services outlined above, Vendor reserves the right to adjust its prices for patient statement mailing services by a proportional amount.

EXHIBIT C - SERVICE LEVEL AGREEMENT

Problems reported to Vendor’s customer support staff will be responded to and resolved according to the following standards:

1. Severity 1 Problems

Severity 1 includes any problems causing total inaccessibility of Vendor’s service, such as the inability for client applications to connect or login to the service. With the exception of any Scheduled Maintenance Window, Vendor provides an availability target that the service will be free from Severity 1 problems 99.9% of the time each calendar month. If Vendor fails to meet the availability target for a particular month, Customer will receive a credit for 5% of the monthly recurring charge for each hour of service outage in excess of the availability target. If Customer reports a Severity 1 problem during Vendor’s normal business hours of 8 AM to 5 PM Pacific Time Monday through Friday, not including Holidays, Vendor’s target response time shall be thirty (30) minutes for full restoration of the service and notification to Customer. If Customer reports a Severity 1 problem after Vendor’s normal business hours, Vendor’s target response time shall be one (1) hour for full restoration of the service and notification to Customer. Upon Customer’s notification to Vendor of a Severity 1 problem, Vendor shall confirm the problem, communicate the plan to restore service, and restore service within target response timeframe.

2. Severity 2 Problems

Severity 2 includes any problems causing major impact to Customer’s normal business operations, including a) scheduling, b) patient registration, c) charge entry, d) payment posting, e) paper claim printing, f) electronic claim submissions (except problems due to the interruption of service by a third-party clearinghouse), or g) reports. With the exception of any Scheduled Maintenance Window, Vendor provides an availability target that the service will be free from Severity 2 problems 99% of the time each calendar month. If Vendor fails to meet the availability target for a particular month, Customer will receive a credit for 5% of the monthly recurring charge for each hour of service outage in excess of the availability target. If Customer reports a Severity 2 problem during Vendor’s normal business hours of 8 AM to 5 PM Pacific Time Monday through Friday, not including Holidays, Vendor’s target response time shall be two (2) hours for full restoration of the service and notification to Customer. If Customer reports a Severity 2 problem after Vendor’s normal business hours, Vendor’s target response time shall be twenty-four (24) hours for full restoration of the service and notification to Customer. Upon Customer’s notification to Vendor of a Severity 2 problem, Vendor shall elicit the problem description from Customer, research and notify Customer of the cause of the problem, communicate the plan to correct the problem, and use commercially reasonable efforts to restore service within target response timeframe.

3. Severity 3 Problems

Severity 3 includes any problems causing minimal impact to Customer’s normal business operations, such as non-critical bugs, problems with the style and formatting of user interface screens or reports, problems with security permissions or user accounts, as well as other new feature enhancements requested by Customer. Customer may report a Severity 3 problem during Vendor’s normal business hours of 8 AM to 5 PM Pacific Time Monday through Friday, not including Holidays. If Customer reports a Severity 3 problem, Vendor’s target response time shall be two (2) hours for Vendor to notify Customer of Vendor’s plan to resolve the problem. Depending upon the severity of the problem and the effort required to fix the problem, Vendor shall do one of the following: a) request further information from Customer that may be necessary to resolve the problem, b) deploy a software patch to fix the problem immediately, c) deploy a software patch within the next available maintenance window, or d) schedule the development of the fix for a future release. In all cases, Vendor shall notify Customer of its plan to resolve the problem and shall proceed with diligence to resolve said problem as soon as commercially reasonable.

4. Scheduled Maintenance Windows

Vendor may temporarily shut down the service for scheduled maintenance, which may include such activities as installing new versions of the service, upgrading hardware infrastructure, or any other maintenance as necessary. Vendor shall cause all scheduled maintenance to occur between the hours of 5 PM Pacific Time on Saturdays and 8 AM Pacific Time on Sundays. Vendor shall notify Customer at least twenty-four (24) hours prior to any scheduled maintenance.

5. Changes to Service Level Agreement

After a period of twelve (12) months after the Effective Date of this Agreement, Vendor may, at its sole discretion, modify the terms and conditions of this Service Level Agreement at any time. However, any modification of the Service Level Agreement by Vendor shall not apply during the Initial Term of Accepted Orders.

EXHIBIT D - BUSINESS CONTINUITY PLANS

Vendor shall adhere to the following plans and procedures in order to reduce the risk that day-to-day problems or more serious disaster scenarios will affect Customer’s Customers:

1. Data Integrity

Vendor shall maintain several lines of defense against accidental or purposeful data destruction. Vendor’s procedures shall meet the following commitments: a) Up-to-the-hour “log shipping” backups, allowing recovery from server hard drive problems, b) Daily off-site encrypted backups, c) Daily tape media backups at the data center with 8-day retention, d) Monthly delivery of a tape media backup to an off-site secure data vault, and e) Monthly delivery of encrypted, compressed data backup to customer via optical media, in a format specified by Vendor, and subject to a separate charge.

2. Operational Security

Vendor shall implement the following network security procedures that encompass several layers of network and physical security: a) Physical security of unencrypted data patrolled by professional security personnel, b) Physical security of encrypted data safeguarded by high-grade vaults, c) Physical access to data center restricted to operations personnel, and d) Industry-standard cryptographic encryption of data transfers.

3. Change Auditing

In order to prevent unauthorized or undesired changes, Vendor’s shall provide a traceable audit of all configuration changes that take place on Vendor’s production systems, including: a) Automatic auditing of computer access and elevation of privileges, b) Vendor personnel shall maintains log of all additions or changes to production software or hardware, c) Systems, including operating system patches and firewall configuration, and

4. Business Continuity Measures

Vendor’s infrastructure planning includes preparing for multiple failure scenarios, and includes the following measures: a) Continual monitoring of software systems and network connectivity, b) Quarterly test of database failure and cluster switch-over, c) Quarterly test of application server failure and network load-balancing switch-over, d) Quarterly test of full backup customer data restore, e) Quarterly tape media restore test, f) Yearly test of networking equipment failure, g) Yearly test of complete cluster failure, h) Yearly off-site backup restore test, and i) Each test's results logged, reviewed and incorporated into disaster plans.

5. Employee Training

Vendor shall cross-train multiple employees on key business and technical tasks in order to reduce reliance on single individuals. These procedures include: a) Multiple employees trained on software code, b) At least two employees responsible and capable of performing key technical and business processes, and c) At least two employees overseeing key aspects of software deployment.

6. Changes to Business Continuity Plans

Vendor may, at its sole discretion, modify the terms and conditions of this Business Continuity Plans at any time. Customer may request the latest Business Continuity Plan from Vendor at any time.

EXHIBIT E - END USER LICENSE AGREEMENT

The below Form of End-User License Agreement (“EULA”) shall be embedded in Software Service opening screen with a “click, I ACCEPT” feature as further described elsewhere in the Agreement. The EULA is to be private labeled as designated by Customer; however, the EULA is between Vendor / Customer as one party, and End User as the other Party. :

This End-User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity) and Kareo, Inc. (collectively “Kareo”). By signing this Agreement you will be bound by the terms of this Agreement. You agree to comply with this Agreement and to cause all of your employees who have use of or access to the Service (as hereinafter defined) to be bound by this Agreement. If you do not agree to the terms of this Agreement, Kareo is not willing to license any right to use or access any Service to you. In such event, you may not download, install, access, use or copy any Service, and you should promptly contact your provider for instructions with respect to a refund of fees paid by you, if any.

As used in this Agreement, the term “Service” means any Kareo software or services rightfully provided, or rightfully made available, to you by a Kareo-authorized customer (“Subscriber”) under the terms of a valid Customer Agreement between Kareo and Subscriber (“Customer Agreement”), including any or all associated web sites, media, printed materials and any “on-line” or electronic documentation.

SERVICE ACCESS AND USE LICENSE

The Service is licensed to you, not sold. Except for the limited license granted in this Agreement, Kareo and its licensors retain all right, title and interest in the Service, including any updates, modifications, enhancements, or otherwise therefore, all copies thereof, and all proprietary rights in the Service, including copyrights, patents, trademarks and trade secret rights.

1. GRANT OF LICENSE

This Agreement grants you the following rights:

1.1 Hosted Service. During the term of this Agreement, Kareo grants you a personal, nontransferable, nonexclusive and nonassignable license to access and use via the Internet the portion of the Service that is hosted by Kareo or its subcontractors.

1.2 Local Service. During the term of this Agreement, Kareo grants you a personal, nontransferable, nonexclusive and nonassignable license to use the portion of the Service that is expressly provided or made available to you for the purpose of local installation and operation.

1.3 Enhancements. Kareo reserves the right to upgrade, enhance, change or modify the Service at any time in its sole discretion (“Enhancements”). Any Enhancements made available to you by Kareo, if any, will be subject to the terms of this Agreement, except to the extent that conflicting or more restrictive provisions are agreed upon in future agreements relating to such Enhancements.

1.4 Term. This Agreement shall commence on the date this Agreement is executed by you and shall continue until the earlier of (i) the termination of this Agreement, or (ii) the expiration or termination of the Customer Agreement.

2. LIMITATIONS ON LICENSE

The license granted to you in this Agreement is restricted as follows:

2.1 Limitations on Copying and Distribution. You may not copy or distribute the Service except to the extent that copying is necessary to use the Service.

2.2 Limitations on Reverse Engineering and Modification. You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Service. You may not alter or modify any disabling mechanism which may be resident in the Service.

2.3 Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Service, or directly or indirectly permit any third party to use or copy the Service. You will keep any passwords associated with the use of the Service in strict confidence, and will not share such passwords with any third party.

3. DISABLING MECHANISM

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE MAY HAVE A MECHANISM WHEREBY KAREO CAN DISABLE THE SERVICE. YOU AGREE THAT KAREO MAY USE ANY SUCH MECHANISM IN THE EVENT OF YOUR BREACH OF THIS AGREEMENT, OR A BREACH OF YOUR SUBSCRIBER’S CUSTOMER AGREEMENT.

4. TERMINATION

4.1 Breach of Agreement. Without prejudice to any other rights, Kareo may immediately and without notice terminate this Agreement and all rights granted hereunder if you fail to comply with any of the terms and conditions of this Agreement.

4.2 Infringement Claims. In the event of a claim of intellectual property infringement by any third party relating to the Service (“Infringement Claims”), Kareo reserves the right to immediately terminate this Agreement and the rights granted hereunder.

4.3 Unlawful Use. Kareo may terminate the Agreement immediately if Kareo becomes aware of or suspects any unlawful use of the Services; provided, the parties agree Kareo has no duty to monitor for such unlawful use.

4.4 Termination of Subscription Agreement. In the event of any termination or expiration of your Subscriber’s Customer Agreement, Kareo may terminate this Agreement and the rights granted hereunder, with or without cause, in its sole discretion.

4.5 Licensee’s Termination Obligations. In the event of any expiration or termination of this Agreement for any reason, you must remove all copies of the Service and all of its components from all of your systems, and destroy all such Service, components and copies, along with all related media and documentation.

5. EXPORT

You may not export the Service without the prior written approval of Kareo. If the Service was purchased in the United States, you agree to comply with all applicable United States laws and regulations pertaining to export controls. If the Service was purchased outside the United States, you may not re-export the Service except as permitted by the laws of the United States and the laws of the jurisdiction in which you purchased the Service.

6. U.S. GOVERNMENT RESTRICTED RIGHTS

7. ACCEPTABLE Use POLICY.

You agree to adhere to Kareo’s acceptable use policy as posted on the world wide web located at http://www.kareo.com/ or http://www.kareo.com/company/policies/ regarding use of the Service, (“Acceptable Use Policy”), including without limitation, any additional terms and conditions with respect to the Service as may appear in said Acceptable Use Policy. You acknowledge that, from time to time, Kareo may publish a revised Acceptable Use Policy on the Kareo website(s) related to Service. You agree that your continued use of the Service after such publication shall be deemed acceptance of such revised Acceptable Use Policy.

YOU FURTHER AGREE TO COMPLY WITH ANY AND ALL REVISIONS AND EXTENSIONS TO THE KAREO ACCEPTABLE USE POLICY, AS SUCH REVISIONS AND EXTENSIONS MAY BE POSTED AT HTTP://WWW.KAREO.COM/ OR HTTP://WWW.KAREO.COM/COMPANY/POLICIES/ AND AGREE TO REVIEW SUCH PAGE FROM TIME TO TIME FOR SUCH UPDATES.

8. THIRD PARTY CONTENT

Any opinions, advice, statements, services, offers, or other information that is part of the content accessible via the Service that is expressed or made available by third parties are those of the respective authors or distributors and not of Kareo. It is your responsibility to evaluate the information, opinions, advice or other Content available through the Web Site, whether listed or provided by third parties or by Kareo. KAREO ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR APPROVALS WITH REGARD TO THIRD PARTY INFORMATION.

9. NO WARRANTIES

THE SERVICES ARE PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KAREO AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KAREO DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES OR RELATED DOCUMENTATION WILL BE CORRECTED. KAREO MAKES NO REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OR RELIABILITY OF THE SERVICES, THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ACCESSIBLE VIA THE SERVICES, OR THE AVAILABILITY, QUALITY OR SAFETY OF ANY PRODUCTS OR SERVICES AVAILABE THROUGH THE SERVICES. FURTHER, KAREO DOES NOT WARRANT THAT THE SERVICES, OR THE CONTENT AVAILABLE THROUGH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KAREO OR SUBSCRIBER SHALL CREATE A KAREO WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KAREO OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF KAREO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, KAREO’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE INITIAL FEE PAID BY YOU FOR THE SERVICE.

11. INDEMNITY

You agree to indemnify, defend and hold harmless Kareo and its officers, directors, shareholders, agents and affiliates harmless from and against any and all third party claims of any kind (along with attorney's fees and litigation costs) arising out of, resulting from, or in connection with your breach of this Agreement or your use or misuse of the Services, including but not limited to, any allegation that the Customer Data used in any the Service (i) in any way violates any local, state or federal law; is libelous or defamatory; (ii) violates the right of privacy of persons or other state or federal rights; (iii) constitutes a trade secret; or (iv) infringes any copyright, trademark, patent rights, or other intellectual property rights of a third party.

12. GOVERNING LAW

This Agreement is governed by and construed in accordance with the laws of the State of California, U.S.A as applied to agreements entered into and wholly performed within California between California residents. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the County of Orange, State of California and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding.

13. FORCE MAJEURE

Vendor shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services for the time and to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, any act of God, labor dispute , fire, storm, tornado, tidal wave, vandalism, riot, explosion, power outage, earthquake, flood, civil disturbance, sabotage, act of war, act of terrorism, governmental action or regulation, communication or utility failure, or casualty. caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, or storm (collectively “Force Majeure Items”).

14. GENERAL

This Agreement constitutes the entire understanding and agreement between Kareo and you with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by both of the parties. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Kareo to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

14.1 Customer Data You shall have all responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all data you enter into the Software Service system and Kareo shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any such data.

14.2 AUTHORIZATION By signing below, you indicate that you have the authority to bind yourself and the entity indicated below to the terms of this Agreement.

AGREED AND ENTERED INTO as of the date written below.

By:
Name:
Company:
Title:
Date:

EXHIBIT F - HIPAA BUSINESS ASSOCIATES AGREEMENT

Please see the HIPAA Business Associates Agreement linked to from the online order process.