Terms and Conditions

iCare Online Client Agreement

Order Form

THIS ORDER FORM (“ORDER FORM”) SPECIFIES THE SCOPE AND KEY BUSINESS TERMS OF THE MASTER SUBSCRIPTION AGREEMENT THAT DEFINES AND GOVERNS OUR OVERALL RELATIONSHIP WITH YOU.

BY EXECUTING THIS ORDER FORM, YOU ARE PLACING AN ORDER FOR SERVICES WITH US AND AGREE TO THE TERMS OF THIS ORDER FORM AND THE MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”).

This Order Form is dated as of {{today}}.

Initial Subscription Term. The initial subscription term shall be one (1) year. Renewal terms shall be successive one (1) year periods.

2, Users. We shall initially provide one User account. You may activate more Users, and the additional cost for such additional Users shall be determined pro rata, pursuant to the Master Subscription Agreement. The Basic Edition of iCare EHR includes up to five Users.

Fees and Payment. Each activated user shall incur a monthly subscription fee as shown above. Fees shall be billed monthly and due upon receipt. Your obligation to pay fees to Us shall begin when we make the Services available to You.
Services. The Services shall consist of Us providing You and Your Users with full input and retrieval access to the iCare internet browser-based electronic health records system for use at:

{{billing_company}}
{{billing_address_1}}
{{billing_address_2}}
{{billing_city}}, {{billing_state}} {{billing_postcode}}

Support.

5.1. Implementation and Initial Training. Unless a separate implementation and training agreement is executed between You and Us, You are responsible for implementing the Services for your use and for arranging initial training of Your Users. We may refer third party consultants to assist You in such implementation and initial training efforts.

Service Level Agreement. Our Customer Support Department provides services for paid editions of the Services as follows:

Priority	Definition	Maximum first response to You	Further updates to You
HIGH	Issue affecting single critical production function System operating in degraded state Financial impact	8 business hours	Daily until resolved
MEDIUM	Minor subsystem failure has occurred	24 business hours	Weekly until resolved
ROUTINE	System is operating with minor issues that can be circumvented Request for assistance, information, or services that are routine in nature	Automated	As Required

Notices. You are contracting with iCare.com, Inc., a Delaware corporation. You should direct notices under the Agreement to:

iCare.com, Inc.
Attn: General Counsel
401 East Las Olas Boulevard, Suite 1400
Fort Lauderdale, FL 33301
Email: legal@icare.com

Our notices to You under the Agreement will be directed to

{{billing_company}}
Attn: {{customer_wp_user_firstname}} {{customer_wp_user_lastname}}
{{billing_address_1}}, {{billing_address_2}}
{{billing_city}}, {{billing_state}} {{billing_postcode}}
{{customer_wp_user_email}}

Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on November 26, 2023. It is effective between You and Us as of the date of You accepting this Agreement.

Table of Contents

Definitions
HIPAA Privacy and Security Requirements
Services
Use of the Services
Non-iCare.com Providers
Fees and Payment for Services
Proprietary Rights
Confidentiality
Warranties and Disclaimers
Mutual Indemnification
Limitation of Liability
Term and Termination
Who You Are Contracting With, Notices, Governing Law and Jurisdiction
General Provisions

DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Business Associate” shall have the meaning given to such term under the Privacy Rule, including 45 C.F.R. § 160.103.

“Business Day” means any day which is not a Saturday, Sunday or public/bank holiday in the time zone and city where We are located as set forth in this Agreement.

“Covered Entity” shall have the meaning given to such term under the Privacy Rule, including 45 C.F.R. § 160.103.

“Individual” shall have the meaning given to such term under the Privacy Rule, including 45 C.F.R. § 160.103.

“Interface” means Our portion of any software designed to exchange data between the Services and a third party’s software and/or hardware. Any Interface licensed by You from Company shall be set forth in any Order Form or other Appendix(es) under the heading “Interface”, shall be deemed part of the Services and the related software under this Agreement, and shall be used in accordance with and governed by the terms of this Agreement.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Non-iCare.com Applications” means online applications and offline software products or other data services that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.

“Order Form” means the documents for placing orders hereunder, including the order form for Your initial subscription to the Services as set forth in the order form attached hereto and any future order forms, addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Unless designated in writing as replacing a specific subsisting Order Form, a new Order Form will be deemed to be in addition to a currently existing Order Form. Order Forms shall be deemed incorporated herein by reference.

“Privacy Rule” shall mean the HIPAA regulations governing individually identifiable health information codified at 45 C.F.R. Parts 160 and 164.

“Protected Health Information” or “PHI” shall have the meaning given to such term under the Privacy Rule, including 45 C.F.R. § 160.103, created or received by Us under the terms of this Agreement.

“Services” means the products and services that are ordered and purchased by You under an Order Form and made available by Us online via the customer login link at https://icare.com and/or other web pages designated by Us, including associated offline components, as described in the User Guide. “Services” exclude Non-iCare.com Applications.

“User Guide” means the online user guide for the Services, accessible via login at https://icare.com, as updated from time to time.

“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

“We,” “Us,” “Our,” “iCare,” or “iCare.com” means iCare.com, Inc., a Delaware company.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

“Your Data” means all electronic data or information submitted by You in relation to the Services, including, without limitation, Protected Health Information.

HIPAA PRIVACY AND SECURITY REQUIREMENTS

2.1. Our Obligations under the Privacy Rule. In order to receive the Services, You may be required to disclose certain PHI to Us, and We may receive such PHI or create PHI on Your behalf in connection with Our obligations under this Agreement. You and iCare shall protect the privacy and provide for the security of PHI disclosed to Us pursuant to this Agreement in compliance with the Privacy Rule. We may use and disclose PHI created or received pursuant to this Agreement only as follows:

(a) To Carry Out the Purposes of this Agreement. We may use and disclose PHI received from You or created on behalf of You to perform Our obligations under this Agreement solely in accordance with the specifications set forth in this Agreement or as required by law.

(b) Nondisclosure. We shall not use or further disclose the PHI received from or created on behalf of You in a manner that would violate the requirements of the Privacy Rule (including the minimum necessary requirements), if done by You or any covered entity that You serve in the capacity of a business associate. You and iCare agree, pursuant to the requirements of the Privacy Rule, that We may use PHI to the minimum necessary to create (i) de-identified PHI and (ii) aggregate data for the purpose of conducting research to improve treatment, payment, or health care operations. It shall be Your obligation to obtain authorization from Individuals pertaining to the PHI and the use of PHI under this Agreement.

(c) Safeguards. We shall use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for under this Agreement, including adopting policies and procedures regarding the safeguarding of PHI; providing training to relevant employees, independent contractors and subcontractors on such policies and procedures to prevent the improper use or disclosure of PHI; and implementing appropriate technical safeguards to protect PHI.

(d) Reporting Improper Disclosures. We shall report in writing to You any use or disclosure of the PHI not provided for under this Agreement, of which We become aware promptly but in no event later than five (5) Business Days of first learning of any such use or disclosure.

(e) Use of Agents and Subcontractors. We shall ensure that any Approved Subcontractors or agents to whom We provide PHI created or received pursuant to this Agreement agree to the same restrictions and conditions, as set forth in this Section 2, that apply to Us with respect to such PHI.

(f) Availability of Information to You. Within ten (10) Business Days of receipt of a request from You, We shall, in accordance with Your request, make PHI available to You, provide You access to PHI, and/or make a copy of PHI available to You, all in accordance with the Privacy Rule, including 45 C.F.R. § 164.524. If an Individual requests PHI directly from Us, We shall give the Individual access to the PHI in accordance with the Privacy Rule and notify You within ten (10) Business Days of receipt of such a request for PHI from an Individual. If and to the extent that We receive, directly or indirectly, a request from an Individual requesting PHI, We shall notify You in writing promptly after and of such Individual’s request for PHI, as set forth in the previous two sentences, but in no event later than ten (10) Business Days of receiving such request.

(g) Amendment of PHI. Within ten (10) Business Days of a request from You, We shall make Your PHI available to You as You may request to fulfill Your obligations to an Individual to amend such Individual’s PHI pursuant to the Privacy Rule, including 45 C.F.R. § 164.526. We shall incorporate any documented amendments to Your PHI into any and all PHI We maintain. If the Individual requests an amendment to PHI directly from Us, We shall not amend the PHI unless directed by You. You shall have full discretion to determine whether the amendment shall occur. If and to the extent that We receive, directly or indirectly, a request from an Individual requesting PHI, We shall notify You in writing promptly after and of such Individual’s request for an amendment to PHI, as set forth in the previous two sentences, but in no event later than ten (10) Business Days of receiving such request. Under no circumstances shall We be permitted to amend PHI in any respect except pursuant to the Privacy Rule.

(h) Accounting of PHI. Within ten (10) Business Days of notice by You of a request for an accounting of disclosures of PHI by Us or Our subcontractors, We shall make available the account of such disclosures to You as requested for You to fulfill Your obligations to provide an accounting pursuant to the Privacy Rule, including 45 C.F.R. § 164.528. If an Individual requests an accounting of disclosures of PHI directly from Us, We shall not provide the Individual the account of such disclosures unless directed by You. You shall have full discretion to determine whether the Individual shall be given such accounting. If and to the extent that We receive, directly or indirectly, a request from an Individual requesting PHI, We shall notify You in writing promptly after and of such Individual’s request for an accounting of disclosures of PHI, as set forth in the previous two sentences, but in no event later than ten (10) Business Days of receiving such request.

(i) Availability of Books and Records. As required by the Privacy Rule, We shall make Our internal practices, books, and records relating to the use and disclosure of PHI received or created pursuant to this Agreement available to the Secretary of Health and Human Services for purposes of determining Your (or any covered entities that You service) compliance with the Privacy Rule.

(j) Record Retention. We shall retain all PHI received from You, or created or received in the course of performing Our obligations under this Agreement, for the duration of the Term of this Agreement unless otherwise directed by You. We shall retain in perpetuity all de-identified PHI and products thereof subject only to the requirements of the Privacy Rule.

(K) Use of Data. You consent to Our use and disclosure of PHI received from You or created on behalf of You to create de-identified (anonymous) information or aggregate information without identifying Users and that We can be use it for reporting purposes, research and statistical purposes, administering our Services and website(s), and, in the aggregate, understanding how Users as a group use the Services, features and other resources provided by Us.

2.2. Modifications to Privacy Rule. If the Privacy Rule is modified in any way impacting this Agreement, You and iCare shall, at least sixty (60) days prior to the compliance date for such modifications, amend this Agreement to ensure compliance with such modifications. Actions to achieve such compliance may be new Services.

2.3. Interpretation of this Agreement. Any ambiguity in the terms set forth in this Section 2 shall be construed to permit Your full compliance with the Privacy Rule.

SERVICES

3.1. Provision of Services. Subject to the terms and conditions of this this Agreement and the relevant Order Forms, We shall make the Services available to You on a non-exclusive and non-transferable basis during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. We reserve the right to suspend or terminate any User subscriptions which We determined may have been used for an unauthorized purpose.

3.3. Software License. The Services include as a component embedded software and, if agreed in writing, Interface(s). Such software and Interfaces are licensed as a subscription, on a non-exclusive and non-transferable basis, and not sold, by Us to You under the terms of this Agreement. This license is for Your internal purposes only, and any component software and any Interface are to be used solely in connection with the Services and the use limitations of this Agreement.

USE OF THE SERVICES

4.1. Our Responsibilities. We shall: (i) provide Our basic support for the Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 24 notice via the Services and which We shall schedule to the extent practicable during the weekend hours from 11:59 p.m. Friday to 11:59 p.m. Sunday Eastern Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.

4.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, including, without limitation, all of Your Data considered Protected Health Information as described in Section 2 herein. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.

4.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, for all activity occurring under Your User subscriptions and for all use of the Services by Your Users, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, sublicense, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) access the Services if You are Our direct competitor, except with Our prior written consent, or (h) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. In addition, You shall perform the responsibilities necessary to establish Your use of the Services, including properly maintaining all associated equipment, software and environmental conditions in accordance with applicable industry standards and the User Guide.

4.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming Interface(s), and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.

4.5. Your Clinical Product Responsibilities. The Services provide a sophisticated tool that can assist You and Your personnel in the practice of medicine, but it is not a substitute for competent human intervention and discretionary thinking. Therefore, You agree that You and Your personnel engaged in the practice of medicine or support services thereto will do each of the following:

(a) You and Your personnel will verify the critical outputs of the Services following generally accepted standards of medical practice. The term critical outputs means outputs (including without limitation output in the form of data) that You or Your personnel know or should know have potential for negative impact on patient care.

(b) You and Your personnel will confirm the accuracy of life threatening information and critically important results in the same manner that such information and results would be confirmed or verified if it were in paper form or as would be required by generally accepted standards of medical practice. For example, Your personnel must verify allergies, current medications, relevant histories and problems with the patient using applicable standards of good medical practice to no less a degree than if Your personnel were using paper records.

(c) You and Your personnel will confirm the accuracy of life threatening information and critically important results (such as lab, pathology, or radiology results) that are accessed or stored through the Services in the same manner that such information and results would be confirmed or verified if they were in paper form or as would otherwise be confirmed or verified if Your personnel were using applicable standards of good medical practice.

(d) You and Your personnel will be vigilant in reporting any errors or suspected errors discovered in the course of using the Services. You will report immediately to Us any discovered or reported problems with the Services which have been discovered or reported by any of Your personnel or which You or any of Your personnel independently know or should know could adversely affect patient care. If Your or any of Your personnel are alerted to a problem that Your personnel know or should know could adversely affect patient care, You will immediately alert all of Your personnel who could reasonably be affected by the problem.

(e) You and Your personnel will test the Services in Your environment before use. You will do reasonable testing of all critical areas in the Services before You release it and will not use it until You have assured Yourself of its accuracy.

(f) You and Your personnel will use the Services only in accordance with applicable standards of good medical practice.

(g) You acknowledge that the professional duty to the patient in providing healthcare services lies solely with the healthcare professional providing such services. You and Your personnel take full responsibility for the use of information provided by the Services in patient care and You acknowledge that the use of the Services is in no way intended to replace, or serve as a substitute for, professional judgment. We do not assume any responsibility for Your actions or omissions or those of Your personnel which may result in any liability or damages for malpractice, failure to warn, negligence, or any other basis. You shall ensure that all healthcare professionals using the Services are aware of the limitations on the use of the Services.

NON-ICARE.COM PROVIDERS

5.1. Acquisition of Non-iCare.com Products and Services. We or third parties may from time to time make available to You third-party products or services, including but not limited to Non-iCare.com Applications and implementation, customization and other consulting services. Any acquisition by You of such non-iCare.com products or services, and any exchange of data between You and any non-iCare.com provider, is solely between You and the applicable non-iCare.com provider. We do not warrant or support non-iCare.com products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. Subject to Section 5.3 (Integration with Non-iCare.com Services), no purchase of non-iCare.com products or services is required to use the Services except a supported computing device, operating system, web browser and Internet connection.

5.2. Non-iCare.com Applications and Your Data. If You install or enable Non-iCare.com Applications for use with Services, You acknowledge that We may allow providers of those Non-iCare.com Applications to access Your Data as required for the interoperation of such Non-iCare.com Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Non-iCare.com Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Non-iCare.com Applications for use with the Services.

5.3. Integration with Non-iCare.com Services. The Services may contain features designed to interoperate with Non-iCare.com Applications. To use such features, You may be required to obtain access to such Non-iCare.com Applications from their providers. If the provider of any such Non-iCare.com Application ceases to make the Non-iCare.com Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

FEES AND PAYMENT FOR SERVICES

6.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending any of the Services to You.

6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.

6.7. Product Trials and Upgrades. We make some of our products available at no charge and also offer free trial versions of most of our products. Fees for services will begin once free trial periods end and We will bill You accordingly. You may upgrade to a higher product edition at any time during the SubScription Term.

PROPRIETARY RIGHTS

7.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You acknowledge that all right, title and interest in the Services, User Guide, software, Interfaces and all other materials provided by Us hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Us (or the Non-iCare.com provider, if applicable).

7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, in an Order Form or other partnering agreement, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services or decompile, disassemble or otherwise derive or determine the source code of any software contained therein, (v) import, add, modify or delete data in the Services by any method other than direct data entry through the Services or through Our Interface(s), unless approved by Us in advance and in writing; or (vi) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

7.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

7.4. Your Data. You grant us a non-exclusive license to use, reproduce, and create derivative works of Your Data, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.

7.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

7.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

CONFIDENTIALITY

8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

8.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8.4 Injunctive Relief. The Receiving Party acknowledges that violation of the provisions of this Section would cause irreparable harm to the Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

WARRANTIES AND DISCLAIMERS

9.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) subject to Section 5.3 (Integration with Non-iCare.com Services), the functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code; provided, that (i) the Services are operated and used by Your and your Users in accordance with all instructions supplied by Us, including the User Guide; (ii) You promptly notify Us of any such defect and We are able to reproduce the error; (iii) You have paid all amounts due hereunder and are not in default of any provision of this Agreement; (iv) the nonconformity did not result from any of Your or third party services, software, hardware or other equipment that affect the performance of the Services, including failed internet connections; (v) the nonconformity did not result from any modifications to the Services other than by Us or Our authorized representatives, or (vi) the nonconformity did not result from any other causes outside of Our reasonable control.. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.

9.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-GA Services“). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.

9.5. General Testing. As is the case with very complex computer software, the Services are likely to contain some errors. Both iCare and You must test for errors both in the Services and in any Updates as delivered. You are responsible for all final testing of the Services for Your production system. You should also instruct Your employees and Affiliate Users using the Services to be vigilant in identifying reproducible errors or defects in the Services that results in the failure of the Services to operate or produce output in substantial conformity with the iCare User Guide. Any procedures, rules or guidelines for medical treatment incorporated into or provided with the Services are provided as examples only, and You must test and validate that any such procedures, rules, or guidelines are both medically correct and in accordance with Your requirements and procedures.

MUTUAL INDEMNIFICATION

10.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You“), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. We are not obligated under this Section to the extent any Claim arises from Your or Your Users’ breach of this Agreement or use of the Services in combination with any software, or technology not supplied by Us (where there would be no claim, but for such combination). In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

10.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us“), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

LIMITATION OF LIABILITY. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

11.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR SERVICES). IN NO EVENT SHALL WE BE LIABLE FOR ANY THE THIRD-PARTY PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO NON-ICARE.COM APPLICATIONS AND IMPLEMENTATION, CUSTOMIZATION AND OTHER CONSULTING SERVICES.

11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

TERM AND TERMINATION

12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.

12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

12.3. Termination for Cause. A party may terminate this Agreement without cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

12.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

12.6. Surviving Provisions. Section 6 (Fees and Payment for Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 12.6 (Surviving Provisions),13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

13.1. General. You are contracting with iCare.com, Inc., a Delaware corporation. You should direct notices to under this Agreement to:

iCare.com, Inc.
Attn: General Counsel
401 East Las Olas Boulevard
Suite 1400
Fort Lauderdale, FL 33301
Email: legal@icare.com

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, (iii) delivery confirmation, if sent by a nationally recognized overnight delivery service, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

13.3. Agreement to Governing Law and Exclusive Jurisdiction and Venue. Each party agrees that this Agreement shall be governed by the laws of the State of Florida and controlling United States federal law without regard to choice or conflicts of law rules, and to the exclusive personal jurisdiction and venue of the state and federal courts in Broward County, Florida. Any claim against Us must be brought within one (1) year after it arose, or be barred.

13.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

GENERAL PROVISIONS

14.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (legal@icare.com).

14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.7. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).

14.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail, except this Agreement shall govern all terms relating to intellectual property rights, confidential information, warranties and disclaimers, indemnification and liability. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

III. Professional Services Agreement

THIS AGREEMENT GOVERNS YOUR PURCHASE AND RECEIPT OF OUR PROFESSIONAL SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK (“SOW”) OR ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE PROFESSIONAL SERVICES.

You may not receive Professional Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not receive Professional Services for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes.

This Agreement was last updated on April 24, 2020. It is effective between You and Us as of the date of Your accepting this Agreement.

Table of Contents

Definitions
Professional Services
Cooperation
Delivery, Acceptance and Change Orders
Fees, Invoicing and Taxes
Proprietary Rights and Licenses
Confidentiality
Representations, Warranties, Exclusive Remedies and Disclaimers
Indemnification
Limitation of Liability
Term and Termination
Insurance
With Whom You Are Contracting, Notices, Governing Law and Jurisdiction
General Provisions

DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Professional Services Agreement and any exhibits, schedules and addenda.

“Change Order” means any change to an SOW or Order Form, as applicable, as described in the “Change Orders” section below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form, as applicable in the absence of an SOW.

“Deliverable” means a deliverable under an SOW or Order Form.

“Online Services” means any online, web-based services and associated offline components made available by Us (or one or more of Our Affiliates) to You under a separate agreement.

“Order Form” means an ordering document specifying the Professional Services to be provided hereunder and that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. Order Forms governed, in whole or in part, by this Agreement must have a SOW attached thereto or expressly state that the Order Form or certain Professional Services provided thereunder are governed by this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Notwithstanding any language to the contrary in the Order Form, all Professional Services purchased under an Order Form are purchased separately from the Online Services and all references to “Order Form” herein shall not apply in any way to any Online Services, including without limitation, with respect to payment obligations and termination rights.

“Professional Services” means work performed by Us, Our Affiliates, or Our or their respective permitted subcontractors under an SOW or Order Form, including ’Our provision of any Deliverables specified in such SOW or Order Form.

“SOW” means a statement of work describing Professional Services to be provided hereunder, that is entered into between You and Us or any of Our Affiliates or which is incorporated into an Order Form that is entered into between You and US or any of Our Affiliates. An Affiliate of Ours that executes an SOW with You will be deemed to be “Us” as such term is used in this Agreement. SOWs or Order Forms will be deemed incorporated herein by reference.

“We,” “Us” or “Our” means the iCare.com company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

PROFESSIONAL SERVICES

2.1. Scope of Professional Services. We will provide to You the Professional Services specified in each SOW or Order Form (as applicable), subject to Your payment of all applicable fees as set forth in the “Fees” section of this Agreement.

2.2. Relationship to Online Services. This Agreement is limited to Professional Services and does not convey any right to use Online Services. Any use of Online Services by You will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Online Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by Us regarding future Online Service functionality or features.

COOPERATION

3.1. Cooperation. You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation:

(a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Us to perform Our obligations under each SOW or Order Form;

(b) timelydeliveringanymaterialsandotherobligationsrequiredundereachSOWorOrderForm;

(d) assigning an internal project manager for each SOW or Order Form to serve as a primary point of contact for Us;

(e) actively participating in scheduled project meetings;

(f) providing, in a timely manner and at no charge to Us, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to Your appropriate and knowledgeable employees and agents, and continuous administrative access to Your Online Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Us; and

(g) complete, accurate and timely information, data and feedback all as reasonably required.

3.2. Delays. Any delays in the performance of Professional Services or delivery of Deliverables caused by You may result in additional applicable charges for resource time.

DELIVERY, ACCEPTANCE AND CHANGE ORDERS

4.1. Delivery of Services. We will provide the Professional Services, including any Deliverables, in accordance with the Agreement and the applicable SOWs or Order Forms.

4.2. Acceptance. Upon completion of each Deliverable under an SOW or Order Form, We will, as applicable: (a) submit a complete copy to You; and (b) at Your request, demonstrate its functionality to You. You are responsible for reviewing and testing all Deliverables in accordance with such SOW or Order Form pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the parties for such Deliverable. You will provide Us with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance. If You, in Your reasonable and good faith judgment, determine that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the parties for such Deliverable, You must so notify Us in writing within 10 business days after Our submission of the Deliverable, specifying the deficiencies in detail. We will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to You as soon as practicable. You will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Us in writing within 10 business days after resubmission of the Deliverable. If a Deliverable fails to meet the functional requirements specified in the applicable SOW or Order Form after its second resubmission to You, You may either, as Your sole and exclusive remedy: (i) again reject the Deliverable and return it to Us for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to Your executive sponsor for the project associated with the SOW or Order Form and Our Engagement Manager) or (ii) terminate the relevant SOW or Order Form immediately upon written notice and recover all Professional Services fees paid under such SOW or Order Form for such deficient Deliverable. If the parties determine that a Deliverable’s functional requirements specified in a SOW or Order Form require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.

4.3. No Effect on Warranty Remedies. Acceptance of Professional Services, including a Deliverable, will not affect Your rights or remedies under the “Warranty” section below.

4.4. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.

FEES, INVOICING AND TAXES

5.1. Fees. You will pay Us for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Our standard rates in effect at the time the SOW or Order Form is executed. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form. Any amount set forth in a time-and-materials SOW is solely a good-faith estimate for Your budgeting and Our resource-scheduling purposes and is not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, We will continue to provide Professional Services under the same rates and terms. We will periodically update You on the status of the Professional Services and the fees accrued under SOWs or Order Forms.

5.2. Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, We will not exceed such estimate without Your written consent.

5.3. Invoicing and Payment. Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the SOW or Order Form, as applicable, unless otherwise expressly stated therein. Invoiced amounts will be due and payable net 30 days from the invoice date. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.

5.4. Overdue Charges. Subject to the “Payment Disputes” section, if any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in Section 5.3 (Invoicing and Payment).

5.5. Suspension of Professional Services and Acceleration. Subject to the “Payment Disputes” section, if any amount owing by You under this or any other agreement for our Professional Services is 30 days or more overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our performance of Professional Services until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with the Manner of Giving Notice section, before suspending Professional Services to You.

5.6. Payment Disputes. We will not exercise Our rights under the “Overdue Charges” or “Suspension of Professional Services” sections above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

5.7. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

PROPRIETARY RIGHTS AND LICENSES

6.1. Your Intellectual Property. You do not grant to Us any rights in or to Your intellectual property except such licenses as may be required for Us to perform Our obligations hereunder.

6.2. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.

6.3. License for Contract Property. Upon Your payment of fees due under an applicable SOW or Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Your internal business purposes associated with Your use of Our online and offline services anything developed by Us for You, including Deliverables, under this Agreement (“Contract Property”). Each party hereto each retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.

CONFIDENTIALITY

7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party or its Affiliates (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Your Confidential Information includes, without limitation, nonpublic business processes, strategies, technologies and data. Our Confidential Information includes nonpublic technologies, methodologies, tools and templates. Confidential Information of each party includes the terms and conditions of this Agreement and all SOW(s) or Order Form(s), including pricing. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will use the same degree of care that it uses to (i) to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) to not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents that need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations to the Receiving Party not materially less protective than those herein.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2. Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services.

8.3. Disclaimer. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

INDEMNIFICATION

9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding (“Claim”) made or brought against You by a third party arising out of damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and will indemnify You for any damages, attorneys fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, any such Claim, all of the foregoing to the extent caused by Our personnel, provided that You: (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (except that We may not settle any Claim unless it unconditionally releases You of all liability); and (c) give Us all reasonable assistance, at Our cost.

9.2. Mutual Indemnity. Each party (the “Provider”) will defend the other party (the “Recipient”) against any Claim made or brought against the Recipient by a third party alleging that any information, design, specification, instruction, software, data or material furnished by the Provider hereunder (“Material”) infringes or misappropriates such third party’s intellectual property rights, and will indemnify the Recipient from any damages, attorneys fees and costs finally awarded against the Recipient as a result of, or for amounts paid by Recipient under a court-approved settlement of, any such Claim, provided that the Recipient: (a) promptly gives the Provider written notice of the Claim; (b) gives the Provider sole control of the defense and settlement of the Claim (except that the Provider may not settle any Claim unless it unconditionally releases the Recipient of all liability); and (c) gives the Provider all reasonable assistance, at the Provider’s cost. The Provider will have no liability for any such Claim to the extent that (i) it arises from specifications or other Material provided by the other party, or (ii) such claim is based on the Recipient’s use of a superseded or altered version of Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered version of the Material that was provided to the Recipient. In the event that some or all of the Material is held or is reasonably believed by the Provider to infringe or misappropriate, the Provider may in its discretion and at no cost to the Recipient (A) modify or replace the Material so it no longer infringes or misappropriates, (B) obtain a license for the Recipient’s continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from the Recipient. If the Provider exercises option (C), either party may terminate the relevant SOW or Order Form upon 10 days’ written notice given within 30 days after the Provider’s exercise of such option, subject to the “Payment Upon Termination” section below.

9.3. Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.

LIMITATION OF LIABILITY

10.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU FOR PROFESSIONAL SERVICES UNDER THE APPLICABLE ORDER FORM OR STATEMENT OF WORK, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL COVER OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

TERM AND TERMINATION

11.1. Term. This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this section.

11.2. Termination for Convenience. Either party may terminate this Agreement at any time for convenience upon 30 days’ written notice to the other. To the extent there are SOWs or Order Forms in effect when a party terminates this Agreement, such SOWs or Order Forms shall continue to be governed by this Agreement as if it had not been terminated. You may terminate an individual SOW or Order Form for convenience to the extent set forth in such SOW or Order Form.

11.3. Termination for Cause. A party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4. Payment Upon Termination. Upon any termination of an SOW or Order Form, You will pay, in accordance with the Invoicing and Payment section of this Agreement, any unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that You terminate an SOW or Order Form for cause and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees. In the event that We terminate an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.

11.5. Surviving Provisions. The sections titled “Contract Property,” “Confidentiality,” “Representations, Warranties, Exclusive Remedies and Disclaimers,” “Indemnification,” “Limitation of Liability,” “Term and Termination” and “General” will survive any termination or expiration of this Agreement.

INSURANCE

Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.

WITH WHOM YOU ARE CONTRACTING, NOTICES, GOVERNING LAW AND JURISDICTION.

13.1. General. You are contracting with iCare.com, Inc., a Delaware limited liability company. You should direct notices to under the Agreement to:

iCare.com, Inc.
Attn: General Counsel
401 East Las Olas Boulevard
Suite 1400
Fort Lauderdale, FL 33301
Email: legal@icare.com

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the governing law of the State of Florida without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

GENERAL PROVISIONS

14.1. Export Compliance. Each party represents that it is not named on any U.S. government denied-party list. Neither party will access or use any Deliverables or Confidential Information provided to it hereunder in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or governmental regulation.

14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (legal@icare.com).

14.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Our provision and Your receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other of Your order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency between the provisions in the body of this Agreement and any SOW or Order Form (as applicable), the terms of such SOW or Order Form (as applicable) will prevail.

14.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

14.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.6. Subcontractors. We may, in Our reasonable discretion, use subcontractors inside or outside the United States to perform any of its obligations hereunder. We will be responsible for the performance of Professional Services by our personnel (including employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.

14.7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

14.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided however, either party may assign this Agreement in its entirety (including all SOWs or Order Forms, as applicable), without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph will be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Business Associate Addendum

You are receiving and iCare is providing services in connection with the operation of Your medical practice or facility, pursuant to the terms of an agreement between You and iCare (the “Service Agreement”). This Addendum sets forth certain terms that apply to the relationship between You and iCare that arise out of the Service Agreement, and which are required by the Health Insurance Portability and Accountability Act, Public Law 104-191, as amended (“HIPAA”). The terms of this Addendum shall be interpreted and applied consistently with HIPAA.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Addendum and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, the parties intend to be legally bound and agree as follows:

SECTION 1
DEFINITIONS

Unless otherwise specified in this Addendum, all capitalized terms not otherwise defined shall have the meanings established for purposes of Title 45, Parts 160, 162 and 164, of the United States Code of Federal Regulations, as amended from time to time. For purposes of clarification, the following terms are defined as set forth herein below:

1.1 “Breach” means the acquisition, access, use, or disclosure of protected health information in a manner not permitted which compromises the security or privacy of the protected health information. Breach does not include the three exceptions contained in 45 C.F.R. § 164.402(1).

1.2 “Breach Notification Rule” means the HIPAA Regulations pertaining to breaches of Unsecured PHI as codified in 45 C.F.R. Parts 160 and 164.

1.3 “Discovery” means the first day on which a Breach is known to iCare (including any person, other than the individual committing the breach, that is a workforce member or other agent of iCare), or by exercising Reasonable Diligence would have been known to iCare, to have occurred.

1.4 “Electronic PHI” or “EPHI” means PHI that is transmitted by or maintained in electronic media.

1.5 “Electronic Transactions Rule” shall mean the final regulations issued by the Department of Health and Human Services (“HHS”) concerning standard transactions and code sets under 45 CFR Parts 160 and 162.

1.6 “Privacy Rule” means the HIPAA Regulations as codified in 45 C.F.R. Parts 160 and 164.

1.7 “Protected Health Information” or “PHI” means any information, whether oral or recorded in any form or medium: (i) that relates to the past, present, or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present, or future payment of the provision of health care to an individual; and (ii) that identifies the individual, or with respect to which there is reasonable basis to believe the information can be used to identify the individual, and has the meaning given to such term in the Privacy Rule.

1.8 “Security Incident” has the meaning set out in the Security Rule. Generally, a “Security Incident” means any attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or systems operations in an electronic information system.

1.9 “Security Rule” means the Security Standards and Implementation Specifications at 45 C.F.R. Parts 160 and 164.

1.10 “Unsecured PHI” means PHI that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of either the encryption method or the destruction method, as defined in Department of HHS guidance published on April 27, 2009 (74 FR 19006) and modified by guidance published on August 24, 2009 (74 FR 42740). Unsecured PHI can include information in any form or medium, including electronic, paper, or oral.

SECTION 2
PERMITTED USES AND DISCLOSURES BY ICARE

2.1 General Permitted Uses and Disclosures. Except as otherwise limited in this Addendum, iCare may use or disclose PHI to perform functions, activities, or services for, or on behalf of, You as specified in the Services Agreement.

2.2 Permitted Uses and Disclosures for Legal Responsibilities. Except as otherwise limited in this Addendum, iCare may use PHI for the proper management and administration of iCare or to carry out the legal responsibilities of iCare.

2.3 Permitted Uses and Disclosures for Administration. Except as otherwise limited in this Addendum, iCare may disclose PHI for the proper management and administration of iCare, provided that disclosures are required by law or iCare obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and be used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies iCare of any instances of which he/she is aware in which the confidentiality of the information has been breached.

2.4 Permitted Uses and Disclosures for Data Aggregation. Except as otherwise limited in this Addendum, iCare may use PHI to provide to You Data Aggregation services that relate to the health care operations of You.

2.5 Permitted Uses and Disclosures to Federal and State Authorities. iCare may use PHI to report violations of law to appropriate Federal and State authorities, consistent with Federal and State laws and regulations, provided that iCare believes in good faith that You had engaged in conduct that is unlawful or otherwise violates professional or clinical standard, or that the care, services, or conditions provided by You potentially endangers one or more patients, workers, or the public and the disclosure is to a health oversight agency or public health authority, or an attorney retained by or on behalf of iCare.

SECTION 3
OBLIGATIONS OF ICARE

3.1 Use of PHI. iCare shall not use or further disclose PHI other than as expressly permitted in the Service Agreement or required by this Addendum or as required by law.

3.2 Disclosure of PHI. iCare will use or disclose PHI only as permitted by the Services Agreement, this Addendum, or as required by law, provided that any such use or disclosure would not violate HIPAA if done by a Covered Entity, unless permitted under HIPAA for a Business Associate.

3.3 Safeguards. iCare shall use reasonable and appropriate safeguards to prevent use or disclosure of PHI other than as provided for by the Services Agreement or this Addendum.

3.4 Reporting. iCare shall provide You with information regarding all unauthorized uses and disclosures of PHI by iCare, its employees or subcontractors not permitted by the Services Agreement or this Addendum and of which it becomes aware, including Breaches of Unsecured PHI as required by 45 C.F.R. § 164.410 of the Breach Notification Rule, and the remedial action taken or proposed to be taken with respect to such use or disclosure.

3.5 Access to PHI. iCare shall make available PHI in a Designated Record Set to You or to an individual in order to meet the requirements of an individual’s right of access and requests for access to his or her PHI.

3.6 Accounting of Disclosures. iCare shall document such disclosures of PHI and information related to such disclosures as would be required for You to respond to a request by an individual for an accounting of disclosures of PHI; and provide to You or an individual, information collected in accordance with this Addendum, to permit You to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.

3.7 Amendment to PHI. iCare shall make any amendment(s) to PHI in a Designated Record Set that You direct or agrees to at the request of You or an individual, and in the time and manner designated by You.

3.8 Unauthorized Uses and Disclosures. In the event iCare becomes aware of a Security Incident involving EPHI, by itself or any of its agents or subcontractors, iCare shall promptly notify You, in writing, of such Security Incident. You and iCare agree to act together in good faith to take reasonable steps to investigate and mitigate any harm caused by such unauthorized use or Security Incident.

3.9 Breach of Unsecured PHI. When a Breach of Unsecured PHI occurs, iCare shall notify You without unreasonable delay and in no case later than sixty (60) calendar days after Discovery. The notification shall include the identification of each individual affected or reasonably believed by iCare to be affected by the Breach. In addition, iCare will provide You with any information that You need for the required notifications under the Breach Notification Rule without unreasonable delay.

3.10 Marketing. iCare may receive financial remuneration and use or disclose PHI for marketing communications that:

(a) are refill reminders or other communications about a drug or biologic that is currently being prescribed for an individual, but only if any financial remuneration received by iCare in exchange for making the communication is reasonably related to iCare’s cost of making the communication; or

(b) are made by a Health Care Plan (“Plan”) with a HIPAA-compliant authorization from the individual.

iCare may also make communications for treatment of an individual by a health care provider, including case management or care coordination for the individual, or to direct or recommend treatments, therapies, health care providers, or settings of care to the individual, or for case management or care coordination, contacting of individuals with information about treatment alternatives, and related functions to the extent these activities do not fall within the definition of treatment, and may receive financial remuneration for such communications. For the purposes of this Section 3.16, financial remuneration means direct or indirect payment from or on behalf of a third party whose product or service is being described. Direct or indirect payment does not include any payment for treatment of an individual.

3.11 Amendment of Agreement. Upon the enactment of any law or regulation affecting the use or disclosure of PHI, or the publication of any decision of a court of the United States or of this state relating to any such law, or the publication of any interpretive policy or opinion of any governmental agency charged with the enforcement of any such law or regulation, iCare may amend this Addendum in such manner as iCare determines necessary to comply with such law or regulation.

SECTION 4
YOUR OBLIGATIONS

4.1 Permissible Requests by You. You shall not request iCare to use or disclose PHI in any manner that would not be permissible under HIPAA Laws if done by a Covered Entity (unless permitted by HIPAA Laws for a Business Associate).

4.2 Contact Information. You agree that any reports, notification, or other notice by iCare pursuant to this Addendum may be made electronically to Your contact specified on record in Your account information. You shall ensure that such contact information remains up to date during the term of this agreement. Failure to submit and maintain current contact information may delay iCare’s ability to provide notifications under this agreement.

4.3 Communicating Changes. You shall notify iCare of any changes in, or revocation of, permission by an individual to use or disclose PHI, to the extent that such changes may affect iCare’s use or disclosure of PHI.

4.4 Safeguards and Appropriate Use of PHI. You are responsible for implementing appropriate privacy and security safeguards to protect PHI in compliance with the HIPAA Laws. Without limitation, it is Your obligation to exclude PHI from information You submit to technical support personnel through a technical support request. You are solely responsible for ensuring the PHI You transmit may be legally disclosed to the communications recipient(s).

4.5 Restrictions on Disclosure. You will not agree to any restriction or requests or place any restrictions in any notice of privacy practices that would cause iCare to violate this Addendum or any applicable law.

4.6 Compliance with HIPAA. You will not request or cause iCare to use or disclose PHI in any manner that does not comply with HIPAA or this Addendum.

SECTION 5
TERM AND TERMINATION

5.1 Term. The term of this agreement begins as of Addendum Effective Date and terminates automatically upon termination of all services that require a business associate agreement under the HIPAA Laws.

5.2 Termination for Breach.

(a) iCare’s Failure to Comply with HIPAA Obligations. If iCare notifies You, or You otherwise have reason to believe, that iCare has violated a material term of any of the requirements set forth in this Addendum and You believe that a cure of such violation is not possible within a reasonable time specified by iCare, then You shall have the right upon written notice to iCare to terminate the Agreement in its entirety. If You determine that the termination of the Agreement is not feasible, You shall report the violation to the Secretary of Health and Human Services.

(b) Your Failure to Comply with HIPAA Obligations. If You notify iCare, or iCare otherwise has reason to believe, that You have violated a material term of any of the requirements set forth in this Addendum and iCare believes that a cure of such violation is not possible in a reasonable time, then iCare shall have the right upon written notice to You to terminate the Agreement in its entirety. If iCare determines that the termination of the Agreement is not feasible, it shall report the violation to the Secretary of Health and Human Services.

5.3 Effect of Termination. At termination of this Addendum, iCare, if feasible, shall destroy or returned to You or, if it is not feasible to return or destroy the PHI, protections will be extended to such information, in accordance with the termination provisions in this Addendum. The parties acknowledge that it is not feasible for iCare to destroy or return PHI upon termination of this Addendum.

SECTION 6
MISCELLANEOUS

6.1 Amendment and Addenda. The parties agree to amend this Addendum from time to time as necessary for You to comply with the requirements of HIPAA. Any addenda attached as an appendix to this Addendum shall be an integral part of this Addendum, and this Addendum and any such addenda shall be interpreted as one and the same instrument unless otherwise stated in such addenda.

7.2 Indemnification. iCare will indemnify, defend and hold You and its officers, directors, employees, agents, successors and assigns harmless, from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to any third-party claim based upon any breach of this Addendum by iCare or similar breach by other recipients of PHI (“Claim”). If iCare assumes the defense of a Claim, You shall have the right, at its expense, to participate in the defense of such Claim, and iCare shall not take any final action with respect to such Claim without the prior written consent of You. You will indemnify, defend and hold iCare and its officers, directors, employees, agents, successors and assigns harmless, from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to any third-party claim based upon any breach of this Addendum by You or similar breach by other recipients of PHI (“Claim”). If You assumes the defense of a Claim, iCare shall have the right, at its expense, to participate in the defense of such Claim, and You shall not take any final action with respect to such Claim without the prior written consent iCare.

6.2 Survival. The respective rights and obligations of iCare under Section 6.4 of this Addendum shall survive the termination of this Addendum.

6.3 Interpretation. Any ambiguity in this Addendum shall be resolved to permit You and iCare to comply with HIPAA.

6.4 Counterpart Signatures. This Addendum may be executed in one or more counterparts, each of which shall be deemed an original but all of which taken together constitute one and the same instrument.

6.5 No Third-Party Beneficiaries. The parties agree that there shall be no incidental or intended third-party beneficiaries under this Addendum. Nor shall any other person or entity have rights arising from the same.

Accepted and agreed to by a duly authorized representative of Company as set forth below:

{{customer}}