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CareTrack

Terms of Service

SCHEDULE A – TERMS AND CONDITIONS

1. TERMINATION

1.1 Bankruptcy. Either party may terminate this Agreement by providing written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its property; (ii) the other party makes a general assignment of all or substantially all of its assets or business for the benefit of its creditors; (iii) the other party commences or has commenced against it proceedings under any bankruptcy law, which proceedings are not dismissed within sixty (60) days; or (iv) the other party ceases to do business.

1.2 Termination by CareTrack. CareTrack shall have the right to terminate this Agreement in the event Customer (i) commits a material breach of any of its obligations concerning access to or the protection of the TeleCare Services, intellectual property of CareTrack, or Confidential Information (as defined below); or (ii) materially breaches any of its obligations under any provision of this Agreement, which breach is not remedied by Customer within thirty (30) days after receipt of written notice of such breach from CareTrack.

1.3 Termination by Customer. Customer shall have the right to terminate this Agreement in the event that CareTrack materially breaches any of its obligations under this Agreement, which breach is not remedied within thirty (30) days after receipt of written notice of such breach from Customer. In addition, Customer may terminate this Agreement as set forth in Section 4 of the Agreement.

1.4 Rights Upon Termination. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (except where a sole remedy is specified), including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees, expenses, and costs that have accrued or are otherwise owed by Customer to CareTrack. The parties’ rights and obligations under Sections 2.2, 4, and 5 of the Agreement, as well as Sections 1, 3, 4, 5, 6, 7, 8, and 9 of this Schedule A, shall survive termination or expiration of this Agreement.

2. WARRANTIES

CareTrack warrants that the TeleCare Services shall be performed in accordance with CMS statutes and guidelines regarding patient care management services, including those statutes and guidelines related to clinical staff, supervision, licensure, and scope of practice requirements.

3. DISCLAIMERS

3.1 Professional Duty. Customer acknowledges that the professional duty to the patient in providing healthcare services lies solely with the healthcare professional providing such services. Customer takes full responsibility for the use of information provided by the TeleCare Services to deliver patient care and acknowledges that the use of the TeleCare Services is in no way intended to replace, or serve as a substitute for, professional judgment. CareTrack does not assume any responsibility for actions of Customer which may result in any liability or damages due to malpractice, failure to warn, negligence, or on any other basis. Customer shall ensure that all healthcare professionals using the TeleCare Services are aware of the limitations set forth herein on the use of the TeleCare Services.

3.2 General. TELECARE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER CARETRACK NOR ITS LICENSORS WARRANT THAT THE TELECARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY TELECARE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT AS SET FORTH ABOVE, CARETRACK AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES WITH RESPECT TO THE TELECARE SERVICES, AND/OR ANY MATERIALS OR SERVICES FURNISHED TO CUSTOMER UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE TELECARE SERVICES PROVIDED HEREUNDER.

4. EXCLUSIVE REMEDIES

CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AGAINST CARETRACK OR ITS LICENSORS FOR BREACH OF THE WARRANTY SET FORTH IN SECTION 2 OF THIS SCHEDULE A SHALL BE FOR CARETRACK TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ANY ERROR IN THE TELECARE SERVICES AS TO WHICH CUSTOMER HAS GIVEN CARETRACK WRITTEN NOTICE. IN THE EVENT CARETRACK, IN ITS SOLE DISCRETION, DETERMINES THAT IT WOULD NOT BE COMMERCIALLY REASONABLE TO CORRECT ANY DEFICIENT SERVICE, CUSTOMER SHALL BE ENTITLED TO A PRORATED REFUND OF FEES PAID TO CARETRACK FOR THE MONTH DURING WHICH SUCH SERVICE WAS PROVIDED.

5. LIMITATION OF LIABILITY

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CARETRACK OR ANY OF ITS LICENSORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CARETRACK DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. IN NO EVENT SHALL CARETRACK OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES CAUSED BY ANY VIRUSES, TROJAN HORSES OR OTHER SIMILAR CODE, OR ANY DENIAL-OF-SERVICE ATTACKS  OR ANY UNAUTHORIZED ACCESS TO CUSTOMERS’ SYSTEM BY UNRELATED THIRD PARTIES. IN NO EVENT SHALL CARETRACK OR ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR OPPORTUNITIES, COSTS OF PROCUREMENT OF  SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES  ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT CARETRACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

6. INDEMNIFICATION

6.1 Indemnity by CareTrack. CareTrack shall indemnify, defend, and hold harmless Customer from and against any and all damages and costs finally  awarded for direct infringement of any valid United States patent, trademark, trade secret, copyright, or other intellectual property right of a third party in any suit based upon the proper use by Customer of the TeleCare Services, where CareTrack technology and such services are held to be the cause of such infringement. CareTrack shall be relieved of the foregoing obligation unless: (a) Customer notifies CareTrack promptly in writing of any alleged infringement of which Customer becomes aware; (b) Customer gives CareTrack sole authority to control fully the defense and settlement of any such infringement claim; and (c) Customer furnishes all reasonable assistance and provides all appropriate documentation in its possession requested by CareTrack.

7. EXCLUSIONS

Notwithstanding the foregoing, CareTrack shall have no obligation to indemnify Customer pursuant to this Section 6 with respect to any infringement or alleged infringement resulting from (i) any modification to the TeleCare Services made by any party other than CareTrack or CareTrack ‘s authorized representatives; (ii) any unauthorized access or use of the TeleCare Services by Customer or any third party; or (iii) any use of the TeleCare Services in combination with other software, hardware, data or services not supplied or authorized by CareTrack.

7.1 CareTrack Options. In the event of an infringement claim against Customer with respect to the TeleCare Services, or in the event CareTrack believes such a claim is likely, CareTrack shall have the option, at its expense, to (i) modify the TeleCare Services so that they are non-infringing; or obtain for Customer a right to continue accessing the TeleCare Services. If neither of the foregoing alternatives is commercially practicable, CareTrack shall refund to Customer on a prorated basis all pre-paid Fees for TeleCare Services, and this Agreement shall terminate with no continuing obligation or liability of CareTrack to Customer.

7.2 Sole Remedy. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF CARETRACK FOR ANY THIRD PARTY CLAIM OF INFRINGEMENT AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, IN REGARD THERETO.

7.3 Indemnity by Customer. Customer shall indemnify, defend, and hold harmless CareTrack from and against any and all damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of (i) Customer’s failure to comply with all applicable laws, rules, and regulations, and (ii) Customer’s breach of any of the provisions of this Agreement. CareTrack shall provide Customer with (a) prompt written notice of any such claim of which CareTrack becomes aware; (b) all reasonable assistance and documentation in CareTrack’s possession requested by Customer to defend such claim; and (c) control over the defense and settlement of such claim, provided that Customer shall not agree to any settlement or other disposition that imposes any obligation on CareTrack

8. CONFIDENTIAL INFORMATION

8.1 Customer acknowledges that the TeleCare Services contain CareTrack ‘s and/or licensor’s proprietary information and Confidential Information. “Confidential Information” shall mean any information relating to, or disclosed in the course of the Term of this Agreement, which is designated as ‘confidential’ or ‘proprietary’ or some similar designation, or information which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information includes but is not limited to the TeleCare Services, the underlying software, the terms and pricing under this Agreement, business strategies, specifications, and technical data. Confidential Information shall not include information (a) already known to either party at the time of receipt thereof from the other; (b) that was readily available to the general public at the time of receipt thereof from the other; (c) that subsequently becomes known to the general public through no fault or omission on the part of the party receiving such information; (d) that is subsequently disclosed by a third party which has a bona fide and legal right to make such disclosure; or (e) that is required to be disclosed by a court of competent jurisdiction or other governmental authority or pursuant to applicable law, provided that the receiving party shall give prompt notice to the disclosing party prior to any such disclosure and reasonably assist the disclosing party in seeking a protective order.

8.2 Each party shall treat as confidential all Confidential Information of the other party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse, or removal of the other party’s Confidential Information, and will not disclose such Confidential Information to any third party except as may be reasonably necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement, but in no event less than reasonable care.

9.BUSINESS ASSOCIATE AGREEMENT

Both parties agree to and shall comply with the Business Associate Agreement as set forth in Schedule B, attached hereto and incorporated by reference.

10. GENERAL PROVISIONS

10.1 Applicable Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the substantive laws of the State of Georgia, without reference to its conflict of laws principles.

10.2 Exclusive Jurisdiction and Venue. Any action of any kind by any party against another party arising as a result of this Agreement may only be brought in the state and federal courts of competent jurisdiction of Carroll County, State of Georgia, and the parties hereby submit to the exclusive jurisdiction and venue of such courts for such purposes.

10.3 Assignment. Customer may not sell, pledge, assign, sublicense, or otherwise transfer or share its rights or delegate its obligations under this Agreement without the prior written consent of CareTrack, which consent shall not be unreasonably withheld. Any attempted sale, pledge, assignment, sublicense, or other transfer in violation hereof shall be void and of no force or effect. Any authorized assignment by Customer hereunder will be invalid unless the assignee agrees in writing to be bound by and to perform all obligations and terms of this Agreement. CareTrack may assign its rights and delegate its duties hereunder at any time without the consent of Customer.

10.4 Public Reference. Customer consents to the public use of its name as a Customer of CareTrack.

10.5 Modification; Amendment. This Agreement may not be modified or amended except by a writing, which is signed by authorized representatives of each of the parties.

10.6 No Waiver. The failure of either party to exercise any right, or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or of any other term of the Agreement.

10.7 Notice. Any notice required or permitted to be sent hereunder shall be in writing and shall be sent in a manner requiring a signed receipt. Notice is effective upon receipt.

10.8 Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other cause beyond the control of such party provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay.

10.9 Equitable Remedies. The parties recognize that money damages shall not be an adequate remedy for any breach or threatened breach of any obligation hereunder by Customer involving, without limitation, intellectual property, Confidential Information, or access to the TeleCare Services. The parties therefore agree that in addition to any other remedies available hereunder, at law or otherwise, CareTrack shall be entitled to an injunction against any such continued breach of such obligations.

10.10 Severability. If any provision of this agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

10.11 Third Party Beneficiary. No person shall be deemed an intended beneficiary of this Agreement.