Aerolib Software-As-A-Service (SaaS) Agreement

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    SOFTWARE AS A SERVICE AGREEMENT

    This Software As a Service Agreement (the “Agreement”) is made as of date of payment (“Effective Date”) between User (“Customer”) and Aerolib Healthcare Solutions, LLC (“Vendor”), a Pennsylvania limited liability company, with its principal office at 2770 Main Street, Suite 233, Frisco, Texas 75034.

    WHEREAS, Vendor is in the business of supplying software applications and related services to companies in the healthcare industry, including, among other things, its proprietary Appeals and Denials Tool, which allows automated appeals writing process;

    WHEREAS, Customer is a healthcare company/user that desires the use of Vendor’s Appeals and Denials Tool (“ADT”) software application products and services;

    WHEREAS, Vendor and Customer desire to enter into this Agreement defining their respective rights and responsibilities and memorializing the terms and conditions pursuant to which Vendor will provide to Customer the Services for a fee.

    NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties intending to be legally bound hereby agree as follows: 

    DEFINITIONS
    “aaS” is an acronym for “As A Service” and means a business model where the Vendor’s software applications are hosted and delivered to the Customer, including support services over the Internet..
    “aaS Materials” shall mean the written materials relating to the operation and use of the Vendor Software including, but not limited to, user manuals, user guides, technical manuals, release notes, and online help files regarding use of the Vendor Software provided as part of the Service, and any other materials prepared in connection with any Vendor Software modification, correction, or enhancement, and shall include any updated versions of aaS Materials as may be provided by Vendor from time to time (1) in the course of providing the Service; (2) as part of an online tutorials or help files provided with the Service; or (3) in the course of providing web seminars in which Customer or Customer’s Users enroll.
    “Application Support Services” means support pertaining to connectivity issues, configuration setup and modifications and Customer requested customizations, which are defined in Schedule C.
    “Base Components” means the software, and hosting environment as specified in Schedule D that Vendor makes available for use by Customer as part of the Service.
    “Cloud Hosting” means the provision of Vendor’s products and services in a hosted, virtualized environment, accessible via the internet in Vendor’s hosted environment.
    “Vendor Software” means Vendor proprietary software applications and user interfaces as defined in Schedule A and made available to Customer by Vendor as part of the Service.  Vendor Software may contain third-party software components licensed to Vendor. 
    “Customer Data” means all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets that Customer creates, installs, uploads to or transfers in or through the Service or provides in the course of using the Service, excluding identification and other information provided by Customer relative to Customer Users.
    “Electronic Communications” shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Service.
    “Infrastructure Support Services” shall mean the support provided by Vendor for the maintenance and stability of the hosting environment provided as part of the Service.
    “Product Support Services” shall mean the support provided by Vendor to remediate, correct, or abate errors in the out of the box Vendor Software that is provided as part of the Service as defined in Schedule B.
    “Purchase Order Form(s)” refers to a Customer document, in either electronic or written form, issued by Customer to confirm Customer’s purchase of the Service.  The parties acknowledge and agree that the terms and conditions of any such Purchase Order Form shall not be binding upon the parties or in any way modify, amend, or supersede the terms and conditions of this Agreement. 
    “Service” shall mean the Vendor Software and infrastructure in a hosted environment provided and maintained by Vendor to which Customer is being granted access under this Agreement via a web site or another designated internet protocol (IP) address.  Service or Services includes Product Support Services and Application Support Services described in this Agreement.
    “Term” means the 90 days during which Vendor provides the Service as a pilot to Customer.
    “Third Party Products” means application software products provided by third party vendors, including operating system and application software with which the Vendor Software may interface with and which provides certain functionality essential to the operation of the Vendor Software.  Third Party Products are licensed to Vendor for incorporation and use in the hosted environment as part of the Service.
    “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer or on Customer’s behalf. 

    PROVISION OF SERVICES

    In consideration of the fees paid by Customer under this agreement, Vendor agrees to provide Customer access to the service.  Specific components of the service to be provided to customer are as outlined in the schedules annexed hereto.

    INSTALLATION SCHEDULE

    Vendor will implement the infrastructure described in Schedule D in this Agreement.

    This installation schedule is contingent on:

    (the Vendor Software having been installed and accepted by Customer;
    Customer providing: all data reasonably required by Vendor in order to implement the infrastructure as defined in the Statement of Work between the Parties;
    Customer completing all tasks and activities reasonably required as a prerequisite in order for the system to be placed into production use.  Example of these types of activities are, but not limited to, validation activities, document approval, data migration, user training, etc.; and
    Customer providing their internal infrastructure and connectivity needed to access the Services.

    Failure of Customer to achieve all the contingencies described above as well as all other reasonable tasks required for installation may require an adjustment in the schedule and may require the payment of additional fees by Customer.

    LICENSE GRANTS

    Subject to the terms and conditions of this Agreement, Vendor grants to Customer during the Term of this Agreement the nontransferable, nonexclusive worldwide right to permit Users to (a) use the Service, including the Base Components thereof, (b) display and print Customer Data, and (c) use the aaS Materials solely in connection with the Service, all solely for Customer’s own internal business operations providing services to our clients, provided such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use.  Customer acknowledges and agrees that the license granted, for the items herein, is not a concurrent user license and that the rights granted to Customer in this Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Users that Customer authorizes to access the Service shall not exceed the number of licenses Customer has been granted,; (ii) licenses cannot be shared or used by more than one individual User; (iii) Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or make the Service or the aaS Materials available to any third party other than an authorized User; (iv) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, including without limitation the Vendor Software and or aaS Materials that are provided as a part thereof, or access the Service or aaS Materials in order to build a similar or competitive product or service; (v) Customer shall not create Internet ‘links’ to the Service or ‘frame’ or ‘mirror’ any part of the Service, including any content contained in the Service, on any other server or device; (vi) except as expressly stated herein, no part of the Service or aaS Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vii) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service; (viii) Customer acknowledges and agrees that as between Customer and Vendor, Vendor or its Third Party Vendors shall own all right, title and interest in and to all intellectual property rights in the Service and the aaS Materials and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Users relating solely to the Service or the aaS Materials, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof; (ix) unauthorized use of any part of the Service or aaS Materials in any way is expressly prohibited; (x) Customer does not acquire any rights in the Service or aaS Materials, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by Vendor and Third Party Vendors; and (xi) this Agreement is not a sale and does not convey any rights of ownership in or related to the Service, Vendor Software, Third Party Products, or aaS Materials to Customer.

    LICENSES FROM CUSTOMER

    Subject to the terms and conditions of this Agreement, Customer grants to Vendor and its Third Party Vendors the non-exclusive, nontransferable worldwide right to copy, store, record, transmit, display, view, or print (a) Customer Data solely to the extent necessary to provide the Service and aaS Materials to Customer, and (b) any trademarks that Customer provides Vendor for the purpose of including them in Customer’s user interface of the Service (“Customer Trademarks”). In addition, Customer acknowledges and agrees that it is Customer’s obligation to inform Customer’s Users and customers of the processing of Customer Data and information regarding Customer and Customer’s Users pursuant to this Agreement and to ensure that such Users and customers have given any necessary consent to such processing as required by all applicable data protection legislation.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and information regarding Customer and Customer’s Users.  Customer agrees that the license to the Customer Data shall survive termination of this Agreement solely for the purpose of storing backup Customer Data in accordance with the terms of this Agreement.

    By providing Customer with the Services, Vendor does not acquire any right, title and/or interest in the content material (including but not limited to text, Customer-provided software, scripts, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data) that Customer makes available for use by Users by means of the Services (collectively “Content”).  Except as expressly set forth in the Schedules as being the responsibility of Vendor, Customer is solely responsible for all Content. 

    PROPRIETARY RIGHTS

    Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws.  Customer further acknowledges and agrees that the content or information presented to the Customer through the Service may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.  Except where expressly provided otherwise by Vendor, nothing in the Service, the aaS Materials, or the Agreement shall be construed to confer any license to any of Vendor’s (or its  third party manufacturer’s, author’s, developer’s, vendor’s, and service provider’s (“Third Party Vendors”), intellectual property rights, whether by estoppel, implication, or otherwise.  Without limiting the generality of the foregoing, any names or trademarks of the Vendor Software listed on Schedule A and other Vendor service marks, logos and product service names are marks of Vendor (the “Vendor Marks”).  Customer agrees not to display or use the Vendor marks, or the marks of any Third Party Vendor, in any manner without the owner’s express prior written permission.  Vendor reserves the right to subcontract any or all services provided hereunder to third parties.

    LICENSE FEE, TERM AND PAYMENT

    The initial term (“Initial Term”) of this Agreement will commence on the Effective Date. If the Agreement is not renewed or extended after such time, ALL  confidential materials will be deleted fifteen (15) days after the Term Date.

    Invoicing.  Vendor shall invoice Customer annually for the Vendor Software. In order to be paid, all invoices must contain sufficient detail to enable timely review and processing by Customer and must be submitted electronically, in a form acceptable to Customer. Unless Customer provides written notice to Vendor of a good faith dispute with regard to an invoice or portion of such invoice, Customer shall submit payment via check or credit card to Vendor within 30 days of receipt of each invoice from Vendor. Vendor shall itemize the fees appearing on each invoice for the Vendor Software. Vendor will suspend service to Customer for non-payment.

    *Note:  This quantity is an estimate of usage.  The actual quantity of letters will be used for billing purposes.

    Miscellaneous Fees

    Additional training will be billed at $500/user
    Modification/Customization cost will be billed at rate of $200/hr
    For payment that is late greater than thirty (30) days, access may be interrupted or terminated until payment is received with payment accruing late penalty of 5%/week. 

    *PLEASE NOTE: All records will be terminated within fifteen (15) days after the termination of  this Agreement.

    Pricing for backup services includes restores for the purpose of data recovery only.  Data recovery is defined as the restoration of data that has been lost or corrupted due to system crashes, erroneous deletions, or other unplanned events from a recent copy of the data previously backed-up on tape.  In the event that Customer requests Vendor to restore data for reasons other than data recovery older than one month, additional charges may apply.

    TERMS OF SERVICE

    Service Extensions or Updates

    Customer further agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Service, and or any new service subsequently purchased by Customer pursuant to an amendment accepted by Vendor referencing this Agreement will be subject to this Agreement.

    Customer Must Have Internet Access

    In order to use the Service, Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based Content.  Customer must also provide all equipment necessary to make (and maintain) such connection to the World Wide Web in accordance with the requirements set out in Schedule D.

    Email and Notices

    Customer agrees to provide Vendor with Customer’s e-mail address(es), and to accept emails (or other Electronic Communications) from Vendor at the e-mail address Customer specifies.  Notwithstanding any provision in the Agreement to the contrary, acknowledgement by an officer of Customer is not required with respect to e-mail communications pertaining to the Customer’s routine use of the Service, including without limitation communications relating to the support, maintenance, or the updating of the Service. 

    Passwords, Access, and Notification

    Customer may designate up to the number of Users that corresponds to the number of permitted Users.  Customer will provide and assign unique password and user names to each authorized User for each license purchased.  Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or user names with unauthorized users.  Customer will be responsible for the confidentiality and use of Customer’s (including its employees’) passwords and user names.   Customer agrees to notify Vendor if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number.  The foregoing shall also apply to any Purchase Order Forms submitted by the Customer for further User licenses.

    Customer’s Responsibilities

    Each Party agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data.  Customer will ensure that any use of the Service by Customer’s Users is in accordance with the terms of this Agreement.  Customer agree to notify Vendor immediately of any known or suspected breach of security or any known or suspected distribution of Customer Data.  Each Party acknowledges and agrees that it will comply with all the tenets of the Health Insurance Portability and Accountability Act (“HIPAA”) and the HITECH Act in protecting the privacy and security of protected health information (“PHI”).

    In addition to its responsibilities in this Agreement, Customer is responsible for all Customer responsibilities attached hereto or entered into pursuant hereto and all other responsibilities not designated as responsibilities of Vendor.  Customer is solely responsible for obtaining all licenses and permissions necessary related to the Content, including without limitation licenses for any third-party software included in the Content.

    Transmission of Data

    Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the Service.  Customer expressly consents to Vendor’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Vendor.  Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices.  Customer further understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, e-mail, or other electronic means.  Customer agrees that Vendor is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Vendor. 

    Vendor’s Support

    Vendor will make commercially reasonable efforts to promote Customer’s successful utilization of the Service, including but not limited to maintenance and support of the Base Components, providing Customer with user guides and on-line help, and product support. Product Support pertains to support designed to remedy errors in Vendor Software that cause it to deviate from the specifications as described in the aaS Materials.  Vendor also offers ‘for fee’ extended support options and Professional Services consultation, which services may include, among other things, training services, business and regulatory process consulting, submission processing support, submission migration services and system configuration.

    Confidential Information

    Each party may have access to information that is confidential to the other party (“Confidential Information”).  For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential.  Customer’s Confidential Information shall include, but not be limited to, Customer Data and Content.  A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the a party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as established by written records. The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party.  Notwithstanding the foregoing, Customer acknowledges and agrees that Vendor may disclose Customer’s Confidential Information to its Third Party Vendors solely to the extent necessary to perform the Service under this Agreement.  This Section will not  be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action.  The Responding Party will cooperate in the other party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information.  If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.  

    REGULATORY COMPLIANCE

    HHS Audit

    Until fifteen (15) days after termination or expiration of this Agreement, Vendor shall make available to the Secretary of the United States Department of Health and Human Services (“Secretary”) and the United States Comptroller General and their duly authorized representatives, this Agreement and all pertinent books, documents and records necessary to certify the nature and extent of the costs of the goods and services provided to  or for the benefit of Customer or any Customer Client under this Agreement, as their respective interests may appear. This Section does not obligate Vendor to maintain records in any particular format. No attorney-client, accountant-client or other legal or equitable privilege is waived by the Parties by virtue of this Section.  All records will be deleted within fifteen (15) days after the Term Date of the Pilot Program.

    HIPAA Compliance.

    Vendor acknowledges that it is a “Subcontractor” (as defined in 45 CFR 160.103) to Customer and therefore required to provide certain written assurances to Customer concerning its protection, use and disclosure of ‘protected health information’ (as defined in 45 CFR 160.103) created, received, transmitted or retained for or on behalf of Customer (PHI). Accordingly, Vendor agrees to the terms of the Business Assocaite Agreement.

    Encryption

    9.10.           SUSPENSION/TERMINATION

    Suspension for Delinquent Account

    Vendor reserves the right to suspend Customer’s access and/or use of the Service for any account for which any payment is due but remains unpaid after thirty (30) day’s written notice of such delinquency.  Customer agrees that Vendor shall not be liable to Customer, or to any third party, for any suspension of the Service resulting from Customer’s non-payment of the fees as described in this Section.

    Suspension for Ongoing Harm

    Customer agrees that Vendor may, with reasonably contemporaneous telephonic or electronic mail notice to Customer, suspend Customer’s access to the Service if Vendor reasonably concludes that Customer’s use of the Service is causing immediate and ongoing harm to Vendor or others.  Vendor will use commercially reasonable efforts to resolve the issues causing the suspension of Service.  Customer agrees that Vendor will not be liable to Customer or to any third party for any suspension of the Service under such circumstances as described in this Section.  

    Termination

    Either party may terminate this Agreement upon sixty (60) days’ written notice to the other party in the event of a breach of any material obligation under this Agreement, provided that the alleged breach is not cured during the sixty (60) day notice period.  Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service.    
    Either party may cancel this Agreement by providing the other party with at least thirty (30) days’ prior written notice.

    Handling of Customer Data In the Event of Termination

    Customer acknowledges and agrees that following termination of this Agreement, Customer shall return all aaS Materials (except that it may retain a copy for archival purposes or as otherwise provided in this Agreement) to Vendor and Vendor may immediately deactivate Customer’s account.  Furthermore, unless otherwise agreed-upon by the Parties in writing, Vendor shall remove or overwrite all applicable Content from Vendor’s systems following the effective date of termination or cancellation, in accordance with Vendor’s standard procedures.  Prior to any such deletion or destruction, however, Vendor shall either (1) grant Customer reasonable access to the Service, for a period of no less than than fifteen (15) days, for the sole purpose of Customer retrieving Customer Data, or (2) transfer all Customer Data to other media for delivery to Customer.  Customer agrees that Vendor shall not be liable for any third party termination of Customer access to the Service or deletion of Customer Data.  Notwithstanding the foregoing, nothing shall preclude Vendor from maintaining one copy of Customer Data if required by law.

    8.5       Handling of Application In the Event of Termination

    Customer Data, Customer license keys used in hosting, and Customer application documentation updated during the hosting period by application support would be returned to the Customer as defined in the Disentanglement section of this Agreement. 

    10.11.        MODIFICATION/DISCONTINUATION/MAINTENANCE

    Modification to or Discontinuation of the Service

    Vendor reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Customer on which the Customer materially relies.  Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Vendor shall use commercially reasonable efforts to notify Customer prior to any such modification; further, Vendor shall consider the Customer’s validation needs and requirements in connection with any modification of the Service and, except as otherwise noted in Section, shall validate the Service as modified to the same extent provided in the Schedules. 

    Maintenance

    In order to perform maintenance, including infrastructure and application upgrades, there will be routinely scheduled down time. Vendor further reserves the right on approximately a quarterly basis to issue new releases in which Vendor adds functionality to the Service.  Customer acknowledges that these periodic major releases can take several hours to complete.  The time necessary to provide such periodic releases shall not be counted in any system availability calculations.  Vendor shall consult with the Customer and, unless otherwise agreed upon, shall install such major releases during routinely scheduled down time as set forth above.

    11.12.        WARRANTIES

    Vendor hereby represents and warrants to Customer and Customer Clients as follows:

    Legal Compliance

    Vendor has not violated any applicable U.S. federal, state or local laws or regulations or any applicable foreign laws or regulations. All Vendor Software shall be provided by Vendor in compliance with all applicable U.S. federal, state, and local laws and regulations, as well as any applicable foreign laws and regulations and Vendor represents and warrants that it has and will maintain all applicable licenses, registrations, and/or certificates required by any foreign, federal, state, or local law or regulation to provide the Vendor Software.

    Vendor warrants to Customer during the Term of this Agreement that the Service will comply with the material functionality described in the aaS Materials and that such functionality will be maintained in all material respects in subsequent upgrades to the Service.  Customer’s sole and exclusive remedy for Vendor’s breach of this warranty shall be that Vendor shall use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality described in the aaS Materials in accordance with the Service Levels.  Vendor shall have no obligation with respect to this warranty claim, and Customer may not terminate the Agreement, where any alleged nonconformity is due to User error as reasonably determined by the parties after investigation and analysis by Vendor’s Product Support Center.  Vendor does not warrant that the Service will be free of non-material errors, bugs, or minor interruption, or that all such errors will be corrected.  Vendor shall have no obligation with respect to this warranty claim unless notified of such claim by Customer within thirty (30) days of discovery of the first material functionality problem.

    Non-Infringement Warranty

    Vendor warrants that it is the sole owner of and or has full power and authority to grant the license and use of the Service and other rights granted by the Agreement to Customer with respect to the Service and that neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, will in any way constitute an infringement or other violation of any U. S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.

    12.13.        DISCLAIMER OF WARRANTIES

    THE WARRANTIES STATED IN SECTION ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR.  THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS STATED IN SECTION ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY.  CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSE.

    13.14.        LIMITATIONS OF LIABILITY

    CUSTOMER SHALL BE LIABLE TO VENDOR FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE SERVICE) FOR SUCH LIABILITY ARISING FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, WITH UNLIMITED AMOUNT.  VENDOR SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OR CORRUPTION OF ANY DATA OR CONTENT WHETHER RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR OTHERWISE.

    EXCLUSIONS

    NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 SHALL NOT APPLY WITH RESPECT TO: (I) DAMAGES OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CUSTOMER, (II) BREACHES BY CUSTOMER OF LICENSE GRANT TERMS APPLICABLE AS SET FORTH IN THIS AGREEMENT, (III) UNAUTHORIZED USE OF THE OTHER PARTY’S OR VENDOR’S SUBCONTRACTORS’ INTELLECTUAL PROPERTY, MATERIALS OR ASSETS; (IV) DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS OBLIGATIONS THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, (V) CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION, (VI) CLAIMS OF INFRINGEMENT BY A THIRD PARTY, OR (VII)  A SECURITY INCIDENT. 

    14.15.        INDEMNIFICATION

    Personal Injury and Property Damage

    Customer agrees to defend at its expense and indemnify and hold harmless Vendor and its affiliates, directors, officers, employees, agents, successors and assigns (each an “Indemnified Party”), in accordance with the procedures described in this Section, from and against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, “Losses”) arising from or in connection with any such third party claim for:  (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party;  (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party; (iii) a claim of infringement of intellectual property of a third party; (iv) a breach of any term of this Agreement or the Business Associate Agreement, including a breach of any representation or warranty provided in this Agreement or the Business Associate Agreement by the Indemnitor, as defined below, or its employees, subcontractors or agents; (v) any negligent act or omission, willful misconduct, reckless or wrongful act or omission of the Indemnitor or its employees, subcontractors or agents; (vi) any failure of any representation or warranty of the Indemnitor to be true, accurate and complete;  (vii) any failure of the Indemnitor, its employees, subcontractors and agents to comply with applicable foreign, federal, state, or local laws, regulations, rulings or ordinances, or any other legal requirements; or (viii) any Incident (as defined in the Subcontractor Privacy Agreement).

    Infringement

    Vendor will not indemnify, defend and hold harmless Customer for Losses Vendor incurs as a direct result of any claim that the Service infringes any U.S. copyright, trademark,  trade secret or infringes the rights of, or has caused harm to, a third party, with the extent resulting from (i) Customer’s modification of the Service or combination by Customer of the Services with other products or services if the Service would not have been infringing but for such combination or modification, (ii) Customer’s use of the Service in a manner not authorized herein or for which it was not designed, (iii) Customer’s failure to use an updated non-infringing version of the applicable intellectual property to the extent Customer was notified that the update cured an infringement, (iv) changes to the Service made by Vendor at the direction of the Customer or (v) Customer Data.

    Indemnification Procedures

    The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party’s failure to provide notification shall not affect the indemnifying party’s indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party’s ability to defend the applicable claim.  The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim.  The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing.  The indemnifying party shall not make any settlement of the claim that results in any liability, admits wrongdoing, or imposes any obligation on the indemnified party without the prior written consent of the indemnified party.  If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.

    15.16.        INSURANCE COVERAGE

    Vendor shall secure and maintain at all times during the Term, at Vendor’s sole expense, the following insurance policies and limits:

    Bodily Injury and Property Damage.  Commercial general liability insurance, covering Vendor and Vendor’s employees.  The policy shall include coverage for bodily injury and property damage to third parties, as well as coverage for Products/Completed Operations, Blanket Contractual Liability, and Personal/Advertising Injury at the following limits:

    $1,000,000 per occurrence;
    $3,000,000 general aggregate;
    $1,000,000 per occurrence Personal/Advertising Injury; and
    $2,000,000 Products/Completed Operations aggregate.

    Cyber (Privacy/Network) Liability

    Cyber (Privacy/Network) liability coverage providing protection against liability for: (1) privacy breaches [liability arising from the loss or disclosure of confidential information no matter how it occurs]; (2) system breach; (3) denial or loss of service; (4) introduction, implantation, or spread of malicious software code; and (5) unauthorized access to or use of computer systems with at least $3,000,000 aggregate limit. This coverage shall be either (i) on an occurrence basis, or (ii) on a claims-made basis.  If the coverage is on a claims-made basis, Vendor hereby agrees that not less than thirty (30) days prior to the effective date of termination of Vendor’s current insurance coverage or termination of this Agreement, Vendor shall purchase unlimited tail coverage in the above stated amounts for all claims arising out of incidents occurring prior to termination of Vendor’s current coverage or prior to termination of this Agreement. 

    Technology Errors and Omissions

    Technology  errors and omissions liability insurance and electronic media activities liability insurance covering Supplier and Supplier’s employees with at least a $3,000,000 aggregate limit.

    General

    Insurance must be placed with a carrier licensed to do business in the state in which Vendor is providing Vendor Software and must have at least an “A” A.M. Best rating.

    16.17.        NOTICES

    Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt requested, (c) sent by overnight courier.  If to Vendor, a notice shall be forwarded to Aerolib Healthcare Solutions, LLC, at 2770 Main Street, Suite 233, Frisco, Texas 75034, Attn. Chief Executive Officer, and if to Customer, a notice shall be forwarded to Customer at the email address provided at time of executing Buisness Associate Agreement.

    17.18.        PUBLICITY

    Vendor may refer to the existence of this Agreement or disclose its terms to any third party, including in any press release, advertising, marketing, publicity or other materials, without the prior written consent of Customer. Vendor may use the name, trade name, trademarks, service marks or logos of the other Party, Customer Clients or any of its or their Affiliates in any press release, advertising, marketing, publicity or other materials, without the prior written consent of the other Party. Vendor may represent, directly or indirectly, that any product or service of Vendor has been approved or endorsed by Customer or any Customer Clients, without the prior written consent of Customer. 

    18.19.        SURVIVAL

    The following provisions shall survive any termination of this Agreement: Sections 5, 7, 8, 9, 12, 13, 14, 15, 20 and 21.

    19.20.        NO ASSIGNMENT

    Vendor may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld; except: (i) Vendor may assign its rights or obligations hereunder to an Affiliate in which the assigning Party holds a 50% or greater equity interest without the consent of the other Party; and (ii) Vendor may assign its rights and obligations hereunder in connection with any transaction involving the merger, divestiture or acquisition of all or substantially all of its assets of any of its lines of businesses without the consent of Customer.

    20.21.        U.S. GOVERNMENT RESTRICTED RIGHTS

    Any use of the Service by or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights.  Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph I(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs I(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.

    21.22.        FORCE MAJEURE

    Neither Party hereto shall be liable for any failure or delay in performance of its obligations hereunder caused by fire, flood, earthquake, or acts of God, acts of war, terrorism or riots (each, a “Force Majeure Event”). In the case of any delay in performance under this Section 18.1 continuing for more than fifteen (15) consecutive days, the unaffected Party shall have the right to terminate this Agreement upon immediate written notice to the Party that is failing to perform. If a Force Majeure Event occurs, the nonperforming Party will be excused from any further performance or observance of the obligation(s) so affected for as long as the circumstances prevail and the Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. Any Party so delayed in its performance will promptly notify the other by e-mail or via Help-desk ticketing system and describe at a reasonable level of detail the circumstances causing the delay as soon as commercially possible. If Conifer elects termination, Conifer will not be obligated to pay any other termination or other fees, however described, to Vendor, but will pay all fees due and payable for the Software provided prior to termination. Whenever a Force Majeure Event or a disaster causes Vendor to allocate limited resources between or among Vendor’s customers, Conifer will receive at least the same priority in respect of the allocation as Vendor’s other commercial customers receiving substantially similar goods and services. 

    22.23.        SECURITY AND SECURITY POLICIES

    Customer acknowledges that Vendor's internal IT functions may be supported by personnel and other subcontractors based outside the United States.

    23.24.        DISPUTE RESOLUTION.

    Written Notice and Mediation

    In the event of a claim, controversy or dispute arising out of or related to this Agreement (the “Claim”), each Party agrees to give the other written notice of it, and both agree to meet and confer within thirty (30) days of the receipt of the notice of the Claim to try to resolve the matter.  If the meeting or meetings fail to resolve the matter to the satisfaction of the Party raising the issue, then the Parties will refer the dispute to mediation, the costs of which will be shared equally by the Parties, except that each Party will pay its own attorneys’ fees.  The Parties agree that the mediation shall occur within thirty (30) days of a request for mediation, or as otherwise agreed to between the Parties and will be held in Dallas, Texas. The mediator, scope and process of the mediation shall be mutually agreed to between the Parties.

    Binding Arbitration

    Any Claim which is not resolved through mediation, shall be settled by binding arbitration before a single arbitrator, who is an attorney with experience in the outsourcing, billing and collections, and the health care industry. The arbitration shall be conducted under the then-current Commercial Arbitration Rules of the American Arbitration Association. The duty and right to arbitrate shall extend to any Principal Shareholder only to the extent the right or duty arises through a Party or is related to this Agreement. The decision and award of the arbitrator shall be final and binding, and the award rendered may be entered in any court having jurisdiction thereof. The arbitrator is directed to hear and decide dispositive motions in advance of the hearing-on-the-merits by applying the law of the State of Texas. The arbitration shall be held in Dallas, Texas, or any other site as the Parties may mutually agree. The Federal Arbitration Act, 9 U.S.C Section 1 et seq., shall govern the interpretation of this arbitration provision. Regardless of the obligation to arbitrate as set forth in this Agreement, either Party may seek an injunction in court to prevent ongoing breach of the confidentiality provisions or misuse or infringement of its intellectual property rights pending the appointment of and action on the breach of confidentiality, misuse, or infringement of intellectual property rights, by the arbitrator. The existence of the arbitration, the arbitration proceedings and the outcome of the arbitration shall be treated as Confidential Information under this Agreement and shall not be disclosed by either Party. The arbitrator shall award costs associated with the arbitration to the prevailing Party, but each Party shall bear the expense of its own attorneys’ fees.

    24.25.        21               GENERAL PROVISIONS

    Any action related to this Agreement will be governed by Texas law and controlling U.S. federal law.  No choice of law rules of any jurisdiction will apply.  Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Collin County, Texas.  This Agreement, together with the Schedules annexed hereto, represents the parties’ entire understanding relating to the use of the Service and supersedes any prior or contemporaneous, conflicting or additional, communications.  No text or information set forth on any Purchase Order Form, preprinted form or document shall add to or vary the terms and conditions of this Agreement.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.  No joint venture, partnership, employment, or agency relationship exists between Vendor and Customer as a result of this Agreement or use of the Service.  The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.   During the Term and for one year thereafter, neither Customer nor Vendor shall, without the prior written consent of the other Party, recruit, solicit or knowingly offer employment to, employ or subcontract work to an employee of the other Party if the employee is or was previously actively engaged in providing the Vendor Software.  Notwithstanding the foregoing, this provision shall not prohibit general solicitation or hiring an individual that responds to a general solicitation.

    Information received via the Aerolib Patient Form may only be used as permitted by law and the regulations promulgated there under (including, but not limited to, the Health Insurance Portability and Accessibility Act of 1996 as amended ("HIPAA"); 42 C.F.R. Part 2 (Confidentiality of Alcohol and Drug Abuse Patient Records) and the applicable state laws).   Further, as a condition of receiving credentials from Aerolib Healthcare Solutions to the Aerolib Patient Form, you agree:

    All non-public information obtained through or about Aerolib Healthcare Solutions or the Aerolib Patient Form is strictly confidential, and User acknowledges that it will not acquire any rights in such non-public information.

    - The password(s) and username(s) (hereinafter "Credentials") provided for access to the Aerolib Patient Form are issued to specifically to User. Use by anyone other than User is strictly prohibited.

    - Credentials act as a "signature."    A user is accountable for all actions taken using the Credentials issued to them.

    - User agrees to comply with any network security policies and terms and conditions of use issued by Aerolib Healthcare Solutions from time to time.

    - User understands and agrees that the Aerolib Patient Form may be used solely for purposes of accessing the medical records of patients with whom the User has a treatment relationship.

    - User or Outside Entity will immediately report to the Privacy Officer at Aerolib Healthcare Solutions any breach, or possible breach, of data in the Aerolib Patient Form of which User is aware.   User or Outside Entity will also immediately report to the Privacy Officer at Aerolib Healthcare Solutions any security threats known to it that might affect the Aerolib Patient Form or other Aerolib Healthcare Solutions systems.   The Privacy Officer's contact information is listed on the Notice of Privacy Practices, available at www.Aerolib.com .

    - USER UNDERSTANDS THAT THERE ARE NO WARRANTIES WITH RESPECT TO USER'S ACCESS TO THE AEROLIB PATIENT FORM. AEROLIB HEALTHCARE SOLUTIONS IS MERELY ACTING AS A CONDUIT FOR CERTAIN INFORMATION, AND INFORMATION, RESULTS AND DATA PROVIDED BY AEROLIB HEALTHCARE SOLUTIONS ARE PROVIDED "AS IS" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, TIMELINESS, ACCURACY AND USE OF DATA LIES WITH THE USER OF SUCH INFORMATION, DATA AND RESULTS. AEROLIB HEALTHCARE SOLUTIONS DOES NOT GUARANTEE THAT TRANSMISSION OR CONNECTIVITY WILL BE UNINTERRUPTED OR ERROR-FREE.

    - USER AGREES THAT IT IS SOLELY RESPONSIBLE FOR ALL DECISIONS AND ACTIONS TAKEN OR NOT TAKEN INVOLVING PATIENT CARE, UTILIZATION MANAGEMENT, AND QUALITY MANAGEMENT RESULTING FROM OR IN ANY WAY RELATED TOTHE DATA OR INFORMATION PROVIDED BY OR THROUGH AEROLIB HEALTHCARE SOLUTIONS, AND USER AGREES THAT IT DOES NOT HAVE ANY RECOURSE, AND SHALL WAIVE ANY CLAIMS AGAINST AEROLIB HEALTHCARE SOLUTIONS FOR ANY LOSS, DAMAGE, CLAIM, OR COST RELATING TO OR RESULTING FROM USER'S USE, MISUSE, OR FAILURE TO USE DATA PROVIDED BY OR THROUGH AEROLIB HEALTHCARE SOLUTIONS.

    - User understands and agrees that Aerolib Healthcare Solutions has the right to suspend User's access to the data, or to terminate this Agreement, in its sole discretion (a) as necessary or appropriate to maintain stability of the network or integrity of the data; (b) as necessary to ensure compliance with law; or (c) to otherwise respond to unanticipated occurrences.   To the extent practicable, Aerolib Healthcare Solutions shall advise User before taking such action.  Aerolib Healthcare Solutions may terminate this Agreement without cause upon thirty (30) days prior written notice.

    - User agrees that Aerolib Healthcare Solutions intends for data access through the Aerolib Patient Form to improve patient care and lead to increased efficiency in healthcare, and that there is no intent to violate any law.   If, in the reasonable opinion of legal counsel, compliance with this Agreement or continued use of the Aerolib Patient Form to provide access to data as contemplated by the parties is or could reasonably be found, deemed or construed to be illegal or to violate law, the parties agree to negotiate in good faith to modify this Agreement and the underlying arrangement as necessary to comply with law, and if such modification is not possible, this Agreement shall terminate upon ten(10) days prior written notice.

    Understanding that compliance with the foregoing is a condition of use of the Aerolib Patient Form and that use of the Aerolib Patient Form is subject to the terms and conditions of the Aerolib Healthcare Solutions Agreement between Aerolib Healthcare Solutions and Outside Entity. In conjunction with the facility’s Utilization Management Committee and to facilitate compliance with CMS regulation, the Physician Reviewer has performed a second level review and found the above findings. The information in this letter is for the use of the Utilization Review and Case Management Departments. The recommendations for Medical necessity are based on the information provided as of the date of review by the Physician Reviewer. This document is a guidance tool only and should not limit clinical services for the patient stated above. This letter should be used to ensure compliance with CMS policy regarding Medical Necessity. It is the treating physician’s responsibility for correct clinical management, billing and coding for services. Aerolib Analytics and the Audit Risk Score are proprietary property of Aerolib Healthcare Solutions.

    Aerolib Healthcare Solutions provides Physician Advisor Gap coverage for weekends, holidays and after hours coverage for Physician Advisors to develop the next generation hybrid model of Physician Advisor program. We help with education to Physicians, Case managers, Utilization Review personnel and nursing staff which is based on Aerolib`s successful education methodology of Disease Specific Documentation Improvement. Our determination letters include: Case Summary: Includes chief complaint and summary of clinical events detailing medical necessity and severity of illness, Bedding status recommendation: Inpatient or Observation, Audit Risk Score: Calculated using proprietary Aerolib Analytics, this gives an estimate of the risk of an audit At Risk Reimbursement: based on DRG, LOS and billing submissions from existing hospital data and Medicare payments for region Interventions to decrease Audit Risk Score.

    Aerolib Learning Management System: an On-demand E-learning system for Clinical and Regulatory education for Physicians, Physician Advisors, Case managers, Utilization Review personnel and Hospital Administration that is based on Aerolib`s successful education methodology of Disease Specific Documentation Improvement.

    SCHEDULE – PRODUCT SUPPORT

    During the Term of this Agreement and for so long as Customer is entitled to receive the Service hereunder, Vendor shall provide the following Product Support Services through its Support Centers (“SC”) for the Service infrastructure and Vendor Software as follows

    Support inquiries, whether initiated by electronic mail, help-desk ticketing service, or otherwise, will be recorded by Vendor in the SC call-tracking system.  All inquiries will be assigned a tracking number that will be used to communicate with the Customer and to track the progress of a specific support call or inquiry.

    Service Restoration is defined as the period of time measured from a User’s initial ticket request until error or malfunction is corrected.  The service may not be restored to 100% of its original functionality or capacity but is restored to a sufficient state to reasonably continue business operations via corrective action or development of a workaround.  A workaround is defined as a nonstandard method for performing a given operation which produces the same result that would be achievable if the portion of the Software affected by the problem were functioning according to the Documentation.

    All times specified may be impacted by availability of Customer internal support, if required, to assist in investigation or resolution.

    Although Vendor will endeavor to provide a resolution for all errors within the times indicated above, Vendor does not guarantee that all errors will be resolved within these times or that a Resolution will be provided at all. 

    Service Credit.  - NO CREDIT shall be available during the duration of the agreement or thereafter.

    Signed (use pointer to sign here):