Master Services Agreement - CareGLP

This Master Services Agreement (the “Agreement”) is made by and between CareValidate, Inc., a Delaware corporation, (“CareValidate”) and Customer as named in the Quote as of the date Customer signed the Quote (“Effective Date”). Customer and CareValidate may singularly be identified herein as “Party” and collectively as “Parties.” By signing the Quote, Customer acknowledges they have read and accept the terms of this Agreement.

CareValidate provides CareGLP,  a software-as-a-service product (“SaaS”) to manage tele-health and tele-pharmacy services (the “platform”) and certain non-professional administrative and business support services to Medical Professional Corporations (MPCs) engaged in the provision of professional medical services at practice sites and through electronic and telecommunication means. 

The parties agree that:

1. Definitions 

Terms used in this Agreement and not otherwise defined in this Agreement will have the meaning set forth as follows:

1. “Affiliates” means those persons, entities, or businesses that are controlled by, controlling, or under common control with a Party, as of the Effective Date or at any time thereafter during the Term. 

2. “Agent(s)” means: (i) with respect to CareValidate, any of CareValidate’s or its Affiliates’ employees, subcontractors, staff, licensors, providers, or other third parties or individuals that provide or may provide Software Services or other  services to or on CareValidate’s behalf pursuant to this Agreement; and (ii) with respect to Customer, any of Customer’s employees, subcontractors, staff, licensors, providers, or Authorized Users, and other third parties or individuals that access or use the Software Services.

3. “Applicable Law” means all applicable state, federal, international, and/or local laws, statutes, rules and regulations.

4. “Authorized User(s)” means any Agent(s) that Customer permits to use or access the Software Services provided that such Agent has a need to use the Software Services in the scope and course of their relationship with Customer. 

5. “CareValidate Materials” means (i) the Software Services; (ii) Prior Inventions; (iii) all Intellectual Property developed and/or owned by CareValidate, its Agents, or third parties on or after the Effective Date of this Agreement, including, without limitation, all Marks; (iv) research, benchmarking methodologies, tools, and other confidential materials relating to the Software Services (including, without limitation, any such materials based on aggregated and de-identified Customer Data); configurations, workflows, interfaces, modifications and any enhancements of the Software Services developed or customized for Customer hereunder; and (v) any derivative works of any of the foregoing.

6. “Customer Data” means the data or other information input into and/or stored by the Software Services by or on behalf of the Customer.

7. “Documentation” means the product installation instructions, user manuals, release notes, support articles, notices, sample documents, training materials and operating instructions prepared by CareValidate,  all as may be updated from time to time by CareValidate and made available to Customer. 

8. “End User” means the ultimate user of the Solution.

9. “Fees” means the amounts listed  for the Services on the Quote and/or Statement of Work.

10. “Intellectual Property” means any and all copyrights, trademarks, service marks, patents, trade names (registered and unregistered), trade secrets, know-how, inventions, licenses, and all other intellectual property or proprietary rights throughout the world.

11. “Landing Page” means a digital page linked to a website designated by Customer for the provision of assistance to CareValidate in developing and implementing marketing, public relations, or advertising campaigns for MPCs, only to the extent permitted by applicable law and consistent with governing legal and ethical standards.

12. “Marks” means logos and other trademarks, service marks, labels, product names, and service names of CareValidate and its Agents.

13. “Quote” means the Quote and/or Proposal, which is attached hereto as Exhibit 1, is executed by both Customer and CareValidate and references and incorporates the terms of this Agreement by which Customer licenses one or more Software Services. 

14. “Prior Inventions” means any pre-existing invention, discovery, original works of authorship, developments, improvements, trade secrets, concepts or other proprietary information or intellectual property right developed and/or owned by CareValidate, its Agents, or third parties prior to the Effective Date of this Agreement.

15. “Services” means any services provided under this Agreement, including the Software Services (as defined in Section 1.16 below) and Professional Services (as defined in Section 4 below).

16. “Software Services” means CareValidate’s proprietary software provided on a hosted or software as a service basis, including but not limited to the CareValidate platform, CareValidate mobile applications (if any), sample application code, SDKs including associated Application Programming Interfaces (“API”) in object code only or, in connection with sample application code, both object and source code as well as any updates, and any embedded, licensed CareValidate software as CareValidate may approve and license.

17. “Statement of Work” means the statement of work that is executed by both Customer and CareValidate and that references and incorporates the terms in this Agreement describing specific Business Services and the terms under which they are to be provided under this Agreement.

18. “Subscription Term” means the initial time period Customer is authorized to use the Software Services as stated in the Quote and any subsequent renewal terms.

2. Term; Termination; Suspension of Services; Survival 

   1. Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect through the initial subscription term of one (1) year unless otherwise specified in the Quote (“Initial Term”), and/or unless otherwise terminated as provided in the Agreement. To ensure continuity of service, the Agreement and any Quote will automatically renew for additional one-year terms (each a “Renewal Term”) unless either Party gives written notice of non-renewal to the Other Party at least sixty (60) days before the end of the current term. With respect to any Software Services purchased, the Initial Term along with any Renewal Term(s) constitute the full Subscription Term. Additional subscriptions purchased on any subsequent order(s) will co-terminate with the Subscription Term. 

   2. Termination for Convenience. Either party may terminate this Agreement for convenience upon sixty (60) days’ prior notice to the Other Party. 

   3. Termination for Insolvency. Subject to Title 11 of the United States Code, CareValidate may terminate this Agreement if Customer seeks protection from its creditors under the bankruptcy laws,  if a trustee or receiver is appointed over its assets or if an involuntary petition in bankruptcy is filed on behalf of Customer but not removed within 60 days.

   4. Termination for Cause. Either Party may terminate this Agreement upon written notice if the Other Party materially breaches this Agreement and fails to correct the breach within (30) days following notice specifically identifying the breach, provided that the cure period with respect to Late Payments shall be ten (10) days.

   5. Suspension of Access. CareValidate may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the Software Services without incurring any resulting obligation or liability, if: (i) CareValidate receives a judicial or other governmental demand or order or law enforcement request that expressly or by reasonable implication requires CareValidate to do so, in which case CareValidate shall provide Customer prompt written notice where permitted by applicable law and such process; or (ii) CareValidate believes, in its reasonable discretion, that: (a) Customer or any Authorized User has accessed or used the Software Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement;             (b) Customer or any Authorized User is or has been involved in any fraudulent or unlawful activities relating to or in connection with the Software Services; (c) Customer’s use of the Software Services in violation of this Agreement, or the transmission of any Customer Data, poses any security or vulnerability risk to CareValidate, its Affiliates, other customers, authorized users or vendors, or the Software Services; or (d) this Agreement expires or is terminated. If CareValidate suspends Customer’s right to access or use any portion or all of the Software Services, Customer remains responsible for all Fees and charges Customer has incurred through the date of suspension and during the period of any such suspension.

   6. Survival. The following provisions will survive the termination or expiration of this Agreement: Section 4.8 (Proprietary Rights), Section 9 (Confidentiality and Security), Section 10 (Indemnification), Section 11 (Limitation of Liability) and Section 12 (Additional Terms), and such other provisions that by their terms are intended to survive termination or expiration.

3. Software Services

   1. License. Subject to the terms and conditions of this Agreement, including Customer’s payment of all relevant Fees, CareValidate  grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to access, use and display the Software Services, for the duration of the Subscription Term and solely for Customer’s internal purposes. 

   2. Authorized Users. Customer may grant access and use rights to its Authorized Users; provided that: (i) such Authorized User agrees in writing with Customer to be bound by and accepts all of the obligations imposed upon Customer under this Agreement (other than payment obligations for which Customer is solely responsible to CareValidate) and to any reasonable end user terms of use provided by CareValidate;                    (ii) Customer agrees to be responsible for the acts and omissions of such Authorized Users in relation to the Agreement; (iii) the Authorized User is not a CareValidate customer under separate contract, nor actively engaged with CareValidate in discussions for the purchase of the Software Services; (iv) the Authorized User or the entity they represent is not a direct competitor of  CareValidate; and (v) all of Customer’s obligations under the Agreement will remain in force and undiminished. 

   3. Restrictions. Customer and its Authorized Users are prohibited from using the Software Services for any purpose which would violate any provision of this Agreement. Specifically, Customer and Authorized Users will not (i) copy, modify, or create a derivative work from, reverse engineer, disassemble, decompile, decode, adapt, reverse assemble or otherwise attempt to discover any source code in part or in full; (ii) rent, lease, lend, sell, assign, sublicense, distribute, publish, or otherwise transfer any right in the Software Services;         (iii) re-sell the Software Services or its contents, or permit collection (including but not limited to collection via web-scraping); (iv) use any device, software, or routine to bypass any code of the Software Services or to interfere or attempt to interfere with the proper working of the Software Services; (v) take any action that imposes an unreasonable or disproportionately large load on the products or services or its host infrastructure; (vi) engage in any automated system or method of data collection from the Software Services; (vii) disclose, disseminate, reproduce, or publish any portion of the Software Services in any manner or permit the same; (viii) use the Software Services to create derivative products or other derivative works;                          (ix) disassemble, decompile, manipulate, or reverse engineer any portion of the Software Services; or                (x) introduce to the Software Services or use the Software Services to disseminate any  viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware.

   4. User Credentials. Each Authorized User may be assigned a unique identification name and password for access to and use of the Software Services (“User ID”). Customer will be responsible for ensuring the security and confidentiality of any User IDs. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any User ID (whether lawful or unlawful) and that any transactions completed under a User ID will be deemed to have been lawfully completed by Customer. Customer agrees to maintain a current list of all Authorized Users authorized to access the Software Services on behalf of Customer. In no event will CareValidate be liable for the foregoing obligations or the failure by Customer to fulfill such obligations.

   5. Updates. CareValidate reserves the right to upgrade, maintain, tune, backup, amend, add or remove features or functionality, redesign, improve or otherwise alter the Software Services at any time.

4. Professional Services

   1. Description. In connection with this Agreement, CareValidate may provide installation and implementation, training, project management, and other services offered by CareValidate (“Professional Services”). Professional Services specific to the provision of Obesity Telehealth Service offerings facilitated by CareValidate will be performed as follows in this Section 4.

   2. CareValidate will provide the services set out in the Quote and any Statement of Work.

   3. Customer requires resources from CareValidate to address the following:
      

      1. Provide a white-labeled Landing Page that describes the tele-health and tele-pharmacy services offered by MPCs engaged with CareValidate.

      2. Maintain and retain, subject to Customer’s direction, individual records of each case in a secure platform that is compliant with applicable health data, document retention and privacy requirements; provide such reports/records/results to Customer upon its request and/or as needed for compliance with federal/state/local laws, regulations and guidelines. 

   4. Customer Obligations. Customer will:

      1. For Customers who are licensed healthcare providers, cooperate with CareValidate’s healthcare provider credentialing process. Healthcare providers may not access CareGLP until they have successfully completed credentialing.

      2. Provide assistance to CareValidate in developing and implementing marketing, public relations, or advertising campaigns for MPCs. The parties expressly acknowledge and agree that MPCs shall exercise sole and exclusive control over all policies and decisions relating to practice enhancement, marketing and advertising.
         

   5. CareValidate’s Obligations. CareValidate will perform the Services:

      1. In accordance with the terms and subject to the conditions set out in this Agreement. 

      2. Be responsible for providing practice management services to MPCs to assist those groups with the delivery of telehealth-based healthcare services to patients.

      3. Be responsible to bill and collect for all clinical and pharmacy services rendered by MPCs and all other amounts payable to MPCs, including all amounts due for all services furnished by or under the supervision of the clinical professionals acting for or on behalf of the MPCs.

   6. The parties acknowledge that only licensed clinical and pharmacy professionals employed by MPCs and pharmacies exclusively control the provision of professional clinical and pharmacy services and products, and parties neither have nor exercise any control or discretion over the methods by which the clinical and pharmacy professionals render professional clinical and pharmacy services. 

   7. Change Orders. Any changes to the Professional Services shall be made pursuant to a change order mutually agreed upon by the Parties, which shall be considered part of the applicable Quote (a “Change Order”). 

   8. Customer Responsibility. Customer acknowledges and agrees that Professional Services may include advice and recommendations pursuant to marketing, public relations, or advertising campaigns; but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Customer. CareValidate will not perform management functions or make management decisions for Customer. Customer acknowledges and agrees that any advice, recommendations, information, Deliverables or other work product (“Advice”) provided by CareValidate in connection with the services under the Agreement is intended for Customer’s sole benefit, and CareValidate does not authorize any party other than Customer to benefit from the Advice or make any claims against CareValidate relating thereto.  Any such benefit or reliance by another party shall be at such party’s sole risk.  CareValidate may, in its sole discretion, mark such Advice to reflect the foregoing. Except for disclosures that are required by law or that are expressly permitted by this Agreement, Customer will not disclose, or permit access to such Advice to any third party without CareValidate’s prior written consent. Customer will indemnify, defend, and hold harmless CareValidate, its Affiliates (including but not limited to any legal counsel retained by CareValidate) and each of its/their respective officers, shareholders, directors, employees and agents from and against any and all damages, losses, liabilities, judgments, awards, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought by a third party and in each case regardless of character or form arising out of or resulting from Customer’s management decisions with respect to or a third party’s reliance on such Advice.

5. Proprietary Rights

   1. CareValidate Materials; Software Services. As between the Parties, Customer acknowledges that CareValidate is the exclusive owner of all right, title and interest in and to  (i) the Software Services; (ii) Prior Inventions; (iii) all Intellectual Property developed and/or owned by CareValidate, its Agents, or third parties on or after the Effective Date of this Agreement, including, without limitation, all Marks; (iv) research, benchmarking methodologies, tools, and other confidential materials relating to the Software Services (including, without limitation, any such materials based on aggregated and de-identified Customer Data); configurations, workflows, interfaces, modifications and any enhancements of the Software Services developed or customized for Customer hereunder; and (v) any derivative works of any of the foregoing (“CareValidate Materials”). Nothing in this Agreement will confer on Customer or any Authorized User any right of ownership or interest in the Software Services, improvements thereto, or intellectual property rights therein. Customer is hereby granted a worldwide, royalty-free right to distribute to its Authorized Users all reports and analyses provided as part of the Software Services.

   2. Deliverables. Upon full and final payment to CareValidate, CareValidate assigns and grants to Customer title in the tangible items specified as deliverables in the Quote, produced as a result of Professional Services, (the “Deliverables”) and any copyright interest in the Deliverables (not including any CareValidate materials contained in such Deliverables). If and to the extent that any CareValidate Materials are  contained in any of the Deliverables, CareValidate hereby grants Customer a royalty-free, non-exclusive, non-transferable, perpetual license to use such CareValidate Materials solely in connection with Customer’s use of the Deliverables that do not constitute CareValidate Materials.  Customer acknowledges and agrees that CareValidate shall have the right to retain for its files copies of each of the Deliverables and all information necessary to comply with its contractual obligations, laws and regulations and applicable professional standards. 

   3. Customer Data. As between CareValidate and Customer, Customer grants CareValidate a non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable right to host, transmit, collect, distribute, modify, reproduce, display, archive, analyze, use, execute, collect information regarding, create derivative works of, and otherwise perform all operations on or in connection with any Customer Data that is necessary for the proper execution of the Software Services. Customer acknowledges that this includes, without limitation, reformatting, editing, resizing, analyzing, and distributing the Customer Data through third party services, such as its hosting provider. The Customer Data and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Customer or its licensors. 

   4. Derivative Data. Subject to the provisions of Section 5.3, CareValidate shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software Services and related systems and technologies (including, without limitation, anonymous and aggregated information concerning use of Customer Data in the Software Services) (collectively “Derivative Data”). CareValidate will have a perpetual, irrevocable, royalty-free license to (i) use such Derivative Data to improve and enhance the Software Services and for other development, diagnostic and corrective purposes in connection with the Services and other CareValidate offerings, and (ii) disclose and sell such Derivative Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted in the Customer Data except as expressly set forth herein.

   5. Feedback. Providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “Feedback”) is strictly voluntary. If Customer provides any Feedback to CareValidate, orally or in writing, CareValidate shall: (i) own, exclusively, all now known or later discovered rights to the Feedback; (ii) not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Feedback; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to Customer or any other person.

6. Fees; Suspension of Service

   1. Fees. In consideration for CareValidate providing the Services, Customer shall pay to CareValidate the Fees as stated in the Quote that is incorporated into this Agreement. All amounts stated in the Quote as due upon signing are due immediately upon signing. The payment obligations hereunder are non-cancelable and fees paid are non-refundable. 

   2. Fee Adjustment. Due to unexpected changes and market variability, the Fees stated in the Quote may require adjustment (“Fee Adjustment”). In the event of a Fee Adjustment, CareValidate will notify Customer fourteen (14) days prior to its effective date. Customer may terminate if they object to the Fee Adjustment. The Fee Adjustment will be deemed accepted by Customer unless CareValidate receives a written objection and termination notice before the effective date of said Fee Adjustment. 

   3. No Referrals. No amount paid under this Agreement is intended to be, nor shall be construed as, an inducement or payment for referral of or recommending referral of, patients or other healthcare products or services. The parties acknowledge that none of the benefits granted in this Agreement is conditioned on any requirement that either party make referrals to, be in a position to make or influence referrals to, or otherwise generate business for the other party.

   4. Accounting Reports. For purposes of accounting for the payment of fees, either through a web-based dashboard or an emailed report within fourteen (14) days after the end of each calendar month CareValidate will provide a report to Customer detailing the amount being remitted to Customer for that month. Each report will be deemed final and accepted by Customer unless CareValidate receives a detailed written objection within seven (7) days of Customer’s receipt of CareValidate’s report. Once final, CareValidate will remit the amount to Customer.

   5. Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, sales tax, and use tax) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on CareValidate’s net income. Customer will reimburse CareValidate for any Taxes that CareValidate pays as a result of Customer’s use of the Software Services.

   6. Suspension of Service and Acceleration. If CareValidate has not received payment within ten (10) business days after the due date of any applicable invoice, the payment shall be deemed late (“Late Payment”). For any Late Payment, CareValidate may, without limiting its other rights and remedies: (a) immediately suspend Customer’s account which may include, with respect to the Software Services, revoking Authorized Users’ access; and (b) accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable. In addition, interest on any Late Payment shall accrue at the lesser of one and one half percent (1.5%) per month or the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by CareValidate. Customer shall reimburse CareValidate for the reasonable costs of collection, including reasonable fees and expenses of attorneys.

7. CareValidate Warranties

   1. General. CareValidate represents and warrants that CareValidate: (i) is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under this Agreement, in accordance with Applicable Law and its articles of incorporation, bylaws, and/or other governance documents; (ii) has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under this Agreement.

   2. Software Services Warranty. Subject to Section 7.4 below, CareValidate warrants that during the Term, the Software Services, as updated from time to time by CareValidate and used in accordance with the Documentation and the Agreement by Customer, will operate in substantial conformance with the Documentation under normal use.   

   3. Professional Services Warranty. CareValidate warrants that Professional Services will be provided in a professional and workmanlike manner.

   4. Warranty Procedure. Customer must promptly notify CareValidate in writing of a warranty claim under Sections 7.2 and 7.3. Provided that such claim is reasonably determined by CareValidate to be CareValidate’s responsibility, CareValidate shall, within sixty (60) days of its receipt of Customer’s written notice, (i) correct the issue or provide a workaround, (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the issue, or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from CareValidate at CareValidate’s discretion, then CareValidate may terminate the affected Software Services and/or Professional Services and Customer will be entitled to a refund of the unused Fees paid for the affected product applicable to the balance of the then-current Term.  This warranty is void, and CareValidate is not obligated to provide support, if a claimed breach of the warranty is caused by, (a) the combination or use of the Services or Deliverables with a product, item, or material not provided by CareValidate, (b) any unauthorized modification of the Services or Deliverables or tampering with the Services or Deliverables,        (c) use of the Services or Deliverables inconsistent with the accompanying Documentation, (d) Customer’s failure to use any new or corrected versions of the Services or Deliverables made available by CareValidate, or (e) material breach of the Agreement by Customer or its contractors, developers, or third parties.

   5. This Section 7 sets forth Customer’s sole and exclusive remedy and CareValidate’s entire liability for any breach of warranty or other duty related to the Services.

   6. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 7.1 THROUGH 7.3 ABOVE, CAREVALIDATE MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING REGARDING THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE, LOSS OF DATA OR RESULTS OF USE OF THE SERVICES, HARDWARE, OR DELIVERABLES.  WITHOUT LIMITING THE FOREGOING, CAREVALIDATE DISCLAIMS ANY WARRANTY THAT THE SERVICES, HARDWARE, OR DELIVERABLES WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED.  CAREVALIDATE MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, NONINFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.

8. Customer Representations & Warranties

   1. Customer represents and warrants that Customer: (i) is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under this Agreement, in accordance with Applicable Law and its articles of incorporation, bylaws, and/or other governance documents; (ii) has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under this Agreement;           (iii) performance of its duties under this Agreement will in no way conflict with or violate any Applicable Law;  (iv) it has read and understood this Agreement and the services to be provided by CareValidate; (v) it has the ability and right to provide any data it provides to CareValidate; and (vi) will not introduce to the Software Services or use the Software Services in such a way as to disseminate any viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware.  

9. Confidentiality & Security

   1. Confidentiality. During the course of this Agreement, each Party may obtain or gain access to nonpublic information from the Other Party or its Affiliates that is confidential and proprietary in nature. “Confidential Information” means any information a Party or its Affiliates receives or has access to in connection with this Agreement, whether or not disclosed by a Party or its Affiliates, and whether or not labeled as being confidential, which is not publicly known, including, but not limited to: software, financial information, schematics, requirements, configuration information, research papers, projections, routines, processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development and test results, specifications, know-how, formats, plans, sketches, drawings, models, customer lists, customer and supplier identities and characteristics, agreements, marketing knowledge and information, sales figures, pricing information, marketing plans and business plans, organizational structure and operations, strategies, forecasts, analyses, financial information, budgets, system flow charts, process flow diagrams, data dictionaries, data models, entity relationship diagrams, object models, screen layouts, and any other information of a Party or its Affiliates stored or created on any media or in any form and received, processed, stored, archived or maintained by a Party or its Affiliates. “Confidential Information” will not include information that a Party can demonstrate through written documentation: (i) was publicly known through no wrongful act of a Party; (ii) was in a Party’s lawful possession prior to disclosure under this Agreement and was not received as a breach of any confidentiality obligations; (iii) was independently developed by a Party outside the scope of this Agreement; or (iv) was lawfully obtained from a third party without confidentiality restrictions. The Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they will: (i) retain all ownership rights in and to their Confidential Information;  and (ii) use the same standard of care that a Party uses to protect its own Confidential Information of a like nature and, in any event, no less than a reasonable standard of care; and (iii) not use the Confidential Information for any reason other than to fulfill its obligations pursuant to this Agreement; and (iv) not use, reproduce, or disclose the Confidential Information to any third party, in each case, without prior express written consent of the Other Party other than to those of its employees, agents, and consultants who require it in connection with their duties in performing its obligations under this Agreement. A Party will, and will ensure that its Agents, employees, and consultants comply with all of confidentiality and non-disclosure and non-use obligations hereunder. A Party will promptly notify the Other Party in the event that a Party learns of any unauthorized release or use of Confidential Information. In the event a Party is required to disclose any Confidential Information by law, court order, or regulatory agency action, a Party will provide the Other Party: (i) immediate written notice thereof, if legally permitted; (ii) the opportunity to oppose such request for disclosure; and (iii) any cooperation that is reasonably requested by a Party to oppose such request for disclosure. A Party agrees to limit the disclosure to only the Confidential Information specifically required to be disclosed.

   2. Security. CareValidate will use commercially reasonable efforts to maintain industry standard safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of Customer Data as set forth in CareValidate’s Operating and Security Policy, as may be amended from time to time. 

   3. Data Retention. Unless otherwise directed by Customer in writing, CareValidate will retain Customer Data for three (3) months after Customer’s Termination Date, after which time all Customer Data will be destroyed.

10. Indemnification

    1. Customer will defend, indemnify and hold harmless CareValidate, its Affiliates and each of their respective officers, shareholders, directors, employees and agents (collectively, “Indemnitees”) from and against any and all damages, losses, liabilities, judgements, awards, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs), and in each case regardless of character or form (collectively, “Damages”) related to any claim, investigation, audit, regulatory action or other cause of action asserted by a third party against any Indemnitee arising out of or relating to: (i) breach by Customer of and/or its Authorized Users of this Agreement; (ii) violation by Customer and/or its Authorized Users of Applicable Law; (iii) acts or omissions by Customer and/or its Authorized Users; (iv) bodily injury, death or personal property damage caused by Customer and/or its Authorized Users; (v) Customer Data; and (vi) use of the Services.

    2. CareValidate will defend, indemnify, and hold harmless Customer from and against, any Damages  arising from an allegation brought by a third party that the Services or Deliverables infringe on or misappropriate any third party intellectual property right. CareValidate shall have no obligation under this Subsection 10.2 if any claim of infringement or misappropriation results from (a) the unauthorized combination or use of the Services or Deliverables with of a product, item, or material not provided by CareValidate, (b) any unauthorized modification of the Services or Deliverables or tampering with the Services or Deliverables, (c) use of the Services or Deliverables inconsistent with the accompanying Documentation; (d) Customer’s failure to use any new or corrected versions of the Services or Deliverables made available by CareValidate, or (e) CareValidate’s compliance with Customer’s designs, specifications, requests, or instructions. If Customer’s right to use the Services or Deliverables is enjoined or, if CareValidate determines, in its sole discretion, appears likely to be enjoined, CareValidate may, at its sole option, use reasonable efforts to: (i) obtain for Customer the right to continue using the Services or Deliverables; (ii) modify the Services or Deliverables so they no longer infringe or misappropriate, or (iii) if CareValidate determines, in its sole discretion, that neither (i) and (ii) are commercially reasonable, terminate this Agreement and any Quote and/or Quote and refund Customer for any prepaid fees for Services not received. This paragraph states CareValidate’s entire liability and Customer’s exclusive remedy for any infringement or misappropriation of a third party’s intellectual property rights.

11. Limitation of Liability

    1. IN NO EVENT WILL CAREVALIDATE BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER CAREVALIDATE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  IN NO EVENT WILL CAREVALIDATE OR ITS AGENTS’ LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID TO CAREVALIDATE BY CUSTOMER FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURS. 

12. Additional Terms

    1. Trademarks. Customer agrees CareValidate may use Customer’s company name, logo and trademarks in a general list of CareValidate customers.

    2. Force Majeure.  Neither Party shall be responsible for any delay in its performance to the extent caused by events beyond its reasonable control, such as acts of God, industry-wide labor disputes not specific to a party hereunder, systemic utility failures, earthquake, acts or omissions of suppliers and other third parties, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, global or local health emergencies or disease outbreaks, including COVID-19 or such similar diseases, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes. CareValidate further reserves the right to allocate inventories and to substitute suitable materials when, in its opinion, circumstances warrant such allocation or substitution.

    3. Complete Agreement; Amendment. This Agreement is the complete agreement between Customer and CareValidate and supersedes any prior or contemporaneous oral or written communications between Customer and CareValidate concerning the subject matter of this Agreement. There are no conditions, understandings, agreements, representations or warranties, express or implied, which are not specified herein. This Agreement may only be modified by a written document expressly stated for such purpose and executed by the Parties. In the event of a conflict between this Agreement and any Quote, this Agreement shall control.

    4. Assignment. Customer will not transfer this Agreement (whether by direct assignment, change of control, operation of law or otherwise), or assign or subcontract any of its rights or obligations under this Agreement (“Transfer”) without the prior written consent of CareValidate. This Agreement will inure to the benefit of and bind permitted successors and assigns of Customer. Any Transfer made in violation of this section will be voidable and made null at CareValidate’s sole discretion and will be effective as of the date such impermissible Transfer occurred.

    5. Notices. All notices under this Agreement will be in writing and delivered via express mail or certified mail (return receipt requested), or in person to CareValidate and to Customer at their respective addresses set forth in the Signature Section below, or to such other address as either Party may designate subsequently in writing and will be deemed effective upon receipt. 

    6. Governing Law. This Agreement will be governed by the laws of the State of Georgia, without reference to its conflicts of law principles. Jurisdiction and venue for any dispute  arising out of this Agreement will exclusively rest within the state and federal courts of Atlanta, Georgia, and each Party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens related thereto.

    7. Severability. Each term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law and any invalid, illegal, or unenforceable term or provision will be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal, or unenforceable term or provision.

    8. Waiver; Modification. The failure or delay of either Party to exercise any right, remedy or power provided hereunder will not be deemed a waiver of such right, remedy or power. Any modification of the terms of this Agreement will not be effective unless in writing and signed by both Parties. Unless explicitly stated, no use of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.

    9. Independent Contractor. CareValidate, in performance of this Agreement, is acting as an independent contractor of Customer. CareValidate assumes full responsibility for its Agents’ actions or inactions and compliance with any Applicable Laws (including, without limitation, employment, and tax laws) with respect to such Agents. This Agreement does not create a joint venture or partnership between the Parties.

    10. Counterparts. This Agreement  may be executed in one or more counterparts, including by email, pdf, or other electronic means, that preserves the original graphic and pictorial appearance of the document, each of which will be deemed an original, but all of which together will constitute one and the same document. In making proof of this Agreement, it will not be necessary to produce or account for more than one counterpart executed by the Party against whom enforcement of this Agreement is sought.

    11. Construction. Section headings of this Agreement have been added solely for convenience of reference and will have no effect upon construction or interpretation of this Agreement. Unless the context otherwise requires, words importing the singular will include the plural and vice-versa. The words “include,” “includes” and “including” will mean “include without limitation,” “includes without limitation” and “including without limitation,” it being the intention of the Parties that any listing following thereafter is illustrative and not exclusive or exhaustive. All references to “days” will mean calendar days, unless otherwise specified. The Parties acknowledge that this Agreement was prepared by both Parties jointly, and any uncertainty or ambiguity will not be interpreted against any one Party.  

    12. Equitable Relief; Injunction. Each Party acknowledges that the Intellectual Property, and Confidential Information of the Other Party are valuable commercial products, the development of which involved the expenditure of substantial time and money. Any violation of obligations surrounding them will be deemed a material breach of the Agreement, for which the non-breaching Party may not have adequate remedy in money or damages, and the non-breaching Party may be entitled to seek injunctive or other equitable relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.

EXHIBIT 1

QUOTE

The Quote is incorporated into the Master Services Agreement by and between CareValidate, Inc. and Customer.

EXHIBIT 2

STATEMENT OF WORK

The Statement of Work, if any, is incorporated into the Master Services Agreement by and between CareValidate, Inc. and Customer.