CARESERV TECHNOLOGIES, LLC SERVICE AGREEMENT TERMS OF SERVICE Version 2014.1 (01.01.2014) IMPORTANT These Terms of Service (the Terms ), together with all applicable Order(s) (defined below) and Schedules (defined below), constitute the entire agreement (the Agreement ) between the person or entity listed in the Order(s) as the Customer and CareServ Technologies, LLC ( CareServ ) with respect to the Services listed in the Order(s). For your convenience and records, we suggest that you print and retain or save a copy of this agreement. 1. Agreement for Services. (a) These Terms, together with the Applicable Use Policy ( AUP ) and all applicable Schedules (defined below), all of which are incorporated by this reference herein, states the terms and conditions by which CareServ delivers and Customer accepts any or all of the services, licenses or equipment provided by CareServ to Customer (each specific service, license and/or provision of equipment, a Service ). Details of each Service ordered by Customer, including Customer s requirements for each Service, will be set out in CareServ s standard ordering document(s) referencing these Terms ( Orders ) and in those schedules applicable to the Service so ordered (each, a Schedule ), each of which shall be specifically referenced in the relevant Order and made available at http://www.careservtech.com/legal, or such other website as CareServ may maintain from time to time. Completed Orders will be binding only when signed by both parties or when transmitted to CareServ by Customer and acknowledged and accepted in writing (including electronically) by CareServ. The parties may enter into additional Orders for additional Services from time to time. (b) Reference herein to the Agreement shall mean these Terms, all applicable Schedules and all Orders executed thereto. In the event of a conflict between or among the terms of documents relating to a Service, the following order of priority will govern, except where the specific terms of a document provide otherwise: (i) any Order; (ii) any applicable Schedule; and (iii) these Terms. (c) By its execution or written acceptance of an Order, CareServ shall provide and support the Services set forth in such Order, and Company shall pay CareServ for such Services, during the Initial Term listed in the Order and for any Renewal Term(s) (each defined below). (d) Customer agrees and understands that, from time to time, CareServ may engage third party service providers ( TPSPs ) on Customer s behalf to provide certain additional services to Customer. Customer further acknowledges that, although CareServ may invoice the Customer on behalf of a TPSP, this is done solely as a convenience to the Customer and the TPSP, and in no way creates an affiliation between CareServ and such TPSP nor renders CareServ a partner, joint venturer or agent of such TPSP. CareServ makes no representations or warranties as to the quality or suitability of the services or goods provided by a TPSP and is not liable for any loss, damage, expense or liability incurred by the Customer as a result of any act or omission of a TPSP. 2. Provision of Services by CareServ. (a) For each Service ordered, the parties will agree upon a target date on which that Service is intended to be operational (the RSD ). The parties agree and acknowledge that any such date is meant to be a goal only and is not a binding obligation of CareServ.
(b) If Customer or Customer s third-party vendors or agents is/are solely responsible for any delay, including any delay caused by changes made to the Order by Customer, CareServ may charge Customer for any additional, actual costs incurred by CareServ due to such delay, and CareServ will amend the date RSD as necessary. In all other cases of delay, the Project Managers for the Service will amend the RSD. 3. Network; Network Modification and Maintenance. (a) CareServ reserves the right to modify its Network, system configuration or routing configurations. CareServ may, at its sole discretion and without liability, change or modify the features and functionalities of a Service or modify or replace any hardware or software in the Network or in equipment used to deliver any Service over the Network, provided that this does not have a material adverse effect on the committed Service. Network means the telecommunications network and undersea or terrestrial fiber optic systems owned, operated or otherwise licensed for use by CareServ from time to time and is offered to Customer from time to time by CareServ for carriage of Customer s traffic or for other Services under this Agreement. (b) CareServ may, upon such notice as is reasonably practicable under the circumstances, perform scheduled or emergency maintenance (including temporary suspension of a Service as necessary) to maintain or modify the Network, the CareServ Equipment (defined below) or the Services. Service suspensions for the purposes of scheduled or emergency Network modification or preventative maintenance shall not be counted as outage time unless specifically stated otherwise in the Schedule applicable to the affected Service. CareServ Equipment means, if any, the hardware, software and other tangible equipment and intangible computer code contained therein provided by CareServ for use by Customer pursuant to the Agreement. 4. Customer Obligations. In addition any other obligations of Customer under this Agreement, Customer shall: (a) Provide CareServ with the name of a Customer representative who can be reached, in person, at all times, regarding technical support, the Services, takedown notices under the Digital Millennium Copyright Act of 1998 ( DMCA ), the Network and matters to all of the foregoing. (b) Provide to CareServ, its agents or suppliers reasonable access to the Customer Equipment (defined below), facilities and locations as necessary to install, provide and maintain the Services, Network, CareServ Equipment and Customer Equipment, as applicable. Customer Equipment means any computer hardware, not including stored data, and other tangible equipment (including, without limitation, telecommunication equipment) owned or otherwise controlled by Customer. (c) Provide network functionality and any other equipment and facilities required to support the Services configurations and to connect Customer to the Services. (d) Ensure that all of the Customer Equipment used in connection with the Services performs according to the applicable manufacturer s published technical specifications and applicable interface specifications defined for the Services. CareServ may disconnect any Customer Equipment from the CareServ Equipment or the Network if, in CareServ s reasonable opinion, such equipment poses a danger of personal injury or damage to CareServ s employees, agents, subcontractors or property or will materially impair the Service(s) or the Network. Except as may be specifically provided in an Order or Schedule, CareServ shall have no obligation to install, maintain or repair any Customer Equipment.
(e) Participate as requested in any testing procedures and provide technician support services and a secure and safe environment to any of CareServ s employees, agents or subcontractors working on Customer s premises for installation, testing or maintenance of the Services. (f) Obtain, as required by law or in accordance with the terms of this Agreement, any necessary permission or cooperation of a telecommunications network provider or other relevant person for the connection or maintenance of Customer Equipment. (g) Use the Services only in accordance with the terms of this Agreement. (h) Take reasonable steps to ensure that Customer, its clients and other third party authorized end users do not interfere with or disrupt other users of the Services or the Network. (i) Obtain any and all required licenses and permits relating to Customer s use of the Services, the resale (if not prohibited in the Agreement) of the Services or their use by Customer s clients or other third party authorized end users. (j) Comply with any and all laws, directives, regulations and conventions, and with any public policy related laws, that may be applicable to the use of the Services by Customer or its clients or other third party authorized end users or relating to the provision of those Services by Customer to its clients or other third party authorized end users, including, without limitation, all laws and regulations relating to the use of the Services to distribute any unlawful or infringing material. 5. Acceptable Use Policy. Customer acknowledges that CareServ exercises no control over the content of the information available on the Internet or accessed through the Network. Customer agrees that it is the sole responsibility of Customer to ensure that the information it and third parties (including, without limitation, Customer s users) accessing the Internet through Customer s use of a CareServ Service complies with all applicable laws and regulations and the AUP, which policy may be updated by CareServ from time to time. The AUP is incorporated into this Agreement and made a part hereof by this reference. The current, complete AUP is available for review at http://www.careservtech.com/legal. CareServ may change the web site address at any time via electronic notice. Customer agrees that it has received, read and understands the current version of the AUP. 6. Grant of License; Intellectual Property Ownership. (a) Subject to the terms and conditions of this Agreement, CareServ hereby grants to Customer a limited, nonexclusive, nontransferable, revocable license during the term of this Agreement to use the materials (including, without limitation, software (in object code form only), development tools or utilities, data, documentation or information) developed or provided by CareServ or its suppliers that may be furnished to or used by Customer under this Agreement for use with the applicable Service ordered ( CareServ Materials ) solely to support Customer s use of the applicable Service(s) ordered. (b) CareServ and its suppliers expressly retain, and Customer hereby waives any claim that it may have had or has to, title and ownership in and to all worldwide intellectual property rights in and to the Services, the CareServ Materials, any documentation related to or provided with the CareServ Technology (defined below) and Network and any modifications, adaptations, derivative works, and enhancements made thereto. Except as expressly set forth in this Agreement, no express or implied license, moral rights, or other rights of any kind are granted to Customer regarding the
CareServ Materials, Services or the CareServ Technology. Customer shall not, without the prior written consent of CareServ: (i) reverse engineer, disassemble, decompile, recompile, update or modify the CareServ Materials, or any part thereof; (ii) create derivative works based on the CareServ Materials; (iii) reproduce or make copies of the CareServ Materials or any portion thereof; (iv) sublicense, provide access to, distribute or otherwise transfer the CareServ Materials to any other person or entity; (v) remove any identification or notices of any proprietary or copyright restrictions from any CareServ Materials, related documentation or support or training material; or (vi) compile or use the CareServ Materials or any part thereof for the purpose of any activities that violate any laws or regulations, including, without limitation, any anti-spamming laws and regulations. In addition to the foregoing, Customer will comply with all terms and conditions packaged with or accompanying any third party software furnished to Customer under this this Agreement. Customer agrees that CareServ may crawl or otherwise monitor the external interfaces of the CareServ Materials for the purpose of verifying Customer s compliance with this Agreement. Customer may not attempt to block or otherwise interfere with such crawling or monitoring. CareServ Technology means CareServ s proprietary technology, including the Services, the Software (in source and object forms), software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secrets and any related intellectual property rights throughout the world (whether owned by CareServ or licensed to CareServ from a third party) and also including any derivatives, improvements, enhancements or extensions of CareServ Technology conceived, reduced to practice, or developed during the term of this Agreement by either party. (c) Customer may not use the name, logo, trademarks, service marks or other proprietary indicia of CareServ (the Marks ) without CareServ s prior written approval, including, without limitation, using the Marks (or any of them) to identify CareServ as the supplier or source of the Services provided to Customer hereunder. 7. Fees and Payment Terms. (a) Customer shall pay to CareServ all fees due for the Services according to the prices and terms listed in the Order(s), together with all reasonable fees or costs for third party products or services CareServ procures on behalf of Customer, to the extent approved by Customer in writing. The prices listed in an Order will remain in effect during the Initial Term indicated in such Order. CareServ reserves the right to change, upon thirty (30) days prior written notice to Customer, any fees it charges Customer for any Service during a Renewal Term; or (ii) based on a change in law, rule or regulation, increased power costs or similar circumstances that materially increases the costs or other terms of delivery of any Service, and, in each case Customer s continued use of such Service as of the first day of the Renewal Term or following the notice period, as applicable, shall constitute its acceptance of the changed fee. Alternatively, Customer may terminate such Order by providing written notice to CareServ within fifteen (15) days of receiving notice of the changed fee. (b) Except as otherwise set forth in a Schedule or Order with respect to a particular Service, all fees and charges are due within thirty (30) days of the date of invoice therefor. Any invoiced charges not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing and without prejudice to CareServ s other rights and remedies under this Agreement, at law or equity, if Customer is delinquent in its payments, CareServ may, at CareServ s sole discretion do any one or more of the following: (i) terminate this Agreement pursuant to its terms; (ii) in whole or in part suspend providing Services (or any of them) to Customer until payment in full has been made to CareServ or (iii) require other assurances to secure Customer's payment obligations hereunder.
(c) All fees charged by CareServ with respect to the Services are exclusive of taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction, all of which the Customer will be responsible for, except for taxes based on CareServ s net income. 8. Invoicing. (a) Before the provisioning for each Service, CareServ shall bill Customer for all nonrecurring fees indicated in the Order with respect to such Service. (b) To the extent indicated on an Order, Customer may commit to a minimum usage amount ( Committed Usage ) or a minimum monthly recurring charge ( MRC ), or both, for a Service for the period set forth in such Order (the Commit Period ). Such MRC and Commit Period may be renewed, superseded or modified by the execution, by both parties, of a subsequent Order setting forth such amended terms. (c) Invoicing under these Terms occurs (i) monthly in advance for the MRC(s) (if any), beginning on the first Service Commencement Date (defined below) to occur pursuant to such Order, and (ii) monthly in arrears for the Usage Charges, if applicable. The "Usage Charge" for a particular month shall be an amount (if positive) equal to the sum of all of the Per Service Usage Charges for all Services provided to Customer during such month. The "Per Service Usage Charge" for each Service shall mean an amount (if positive) equal to (x) the total fees incurred by Customer with respect to such Service, calculated pursuant to the Order(s), including, without limitation, any professional services fees, less (y) the MRC for such Service for such month (if any). CareServ reserves the right to invoice on a pro rata basis for any part of one calendar month to allow for subsequent invoices to be calculated and paid on a calendar monthly basis. The Service Commencement Date for each Service is the date on which CareServ notifies the Customer (by writing or electronic transmission) that such Service is available for Customer's use, unless Customer notifies CareServ within forty-eight (48) hours of its non-acceptance of such Service on the basis that agreed technical specifications for the applicable Service have not been met. In the event Customer so notifies CareServ, further tests of the Service will be conducted and, if CareServ finds a defect, a new Service Commencement Date will be established as the date on which CareServ notifies the Customer (by writing or electronic transmission) that such Service is available for Customer's use without such identified defect(s). If CareServ fails to find a defect in the Service during re-testing, the original Service Commencement Date will remain unchanged. Notwithstanding anything contained to the contrary herein or in any other part of the Agreement, any Customer use of a Service for other than testing purposes (even if following notice of non-acceptance) shall be deemed as acceptance of such Service. 9. Term; Termination. (a) These Terms shall be effective upon execution by both Customer and CareServ and shall continue in full force and effect until the termination of the last Order in effect. The term for each Service will commence on the date set forth on each applicable Order and shall continue for the initial term set forth on such Order ( Initial Term ). The term of each Order shall be renewed automatically for additional terms, each equal in length to the period specified in the Order or, if not so specified, to a period equal to the Initial Term (each such period a Renewal Term ), unless one party notifies the other party in writing of its intent not to renew not less than thirty (30) days prior to the end of the thenexpiring Initial Term or Renewal Term, as the case may be. (b) Either party may terminate this Agreement or any Order immediately upon written notice to the other party (or CareServ may, in its sole discretion, suspend the provision of Services under any Order) if: (i) the other party commits a material breach of this Agreement and fails to cure
such breach within seven (7) days after receiving written notice of the same; (ii) the other party becomes the subject of any involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) commits a material breach of this Agreement that is incapable of remedy, including, without limitation Customer s breach of Section 10(a) or Customer s or Customer s end users breach of the terms of the AUP. In addition to the foregoing, CareServ may terminate this Agreement immediately upon written notice to Customer (x) if Customer makes available Customer Content (defined below) that violates the intellectual property rights of third parties; or (y) repeatedly breaches this Agreement. Customer Content means any files, pages, data, works, information or materials on, within, displayed, linked or transmitted to, from or through the Network or the Services, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, e-mail or other messages, metatags, domain names (including those registered by CareServ on Customer s behalf in connection with the Services) and text as provided by Customer or Customer s user, and further including all updates, upgrades, modifications and other versions of any of the foregoing, other than the CareServ Materials. (c) Either party may terminate this Agreement or any Order, without cause, upon thirty (30) days prior written notice to the other party. In addition, CareServ may cancel or suspend the provision of any Service, or portion thereof, upon reasonable notice to Customer if the provision of that Service, or any portion thereof, is determined to be a violation of any applicable law or regulation or of any CareServ license in any jurisdiction, or is no longer permitted under any of the same. (d) Customer acknowledges that CareServ s ability to provide the certain of the Services is subject to various licenses or other agreements (each a Service Agreement ) between CareServ and its third party suppliers. In the event of the expiration or termination of any applicable Service Agreement, CareServ will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the affected Services. If CareServ is unable, for any reason, to obtain such an alternative or replacement Service Agreement, CareServ may terminate the affected Services upon written notice to Customer without any liability to Customer. CareServ agrees to give Customer at least sixty (60) days prior written notice to Customer (or, if it is not possible to give 60 days notice, as much notice as possible under the circumstances) of the termination or expiration of a Service Agreement governing CareServ s ability to deliver any Services to Customer, or any other condition arising under such Service Agreement that is likely to adversely affect Customer s use of such Services or Host s ability to provide such Services. If CareServ terminates any Order or Services pursuant to this Section 9(d), and Customer has prepaid for such Services under this Agreement, then CareServ will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Customer within forty-five (45) days after the date of termination. (e) Upon the effective date of termination of any Order: (i) CareServ will immediately cease providing the Services set forth in such Order, and Customer shall immediately cease using such Services; (ii) all licenses granted hereunder with respect to the terminated Services will immediately terminate; and (iii) any and all payment obligations of Customer under such Order for Services provided through the date of termination will immediately become due. If Customer fails to pay such amounts on the date due, then CareServ may impose the late fees set forth in Section 7(b). In addition to the foregoing, within thirty (30) days of termination of this Agreement as a whole, each party will return or certify the destruction of all Confidential Information (defined below) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement.
(f) Except as otherwise specified in a notice of termination, termination of any Order shall not serve to terminate any other Order or the parties respective obligations thereunder. The definitions herein and the respective rights and obligations of the parties under Sections 6(b)-(c), 9(d)- (f), 10(b) and 11-15 shall survive any termination or expiration hereof. 10. Warranties. (a) Each party warrants and represents that: (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; and (ii) the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties. In addition, Customer represents and warrants that the performance of its obligations and use of the Services by Customer will not violate any applicable laws or the AUP. CUSTOMER S SOLE REMEDIES FOR CARESERV S BREACH OF ANY OF THE WARRANTIES SET FORTH IN THIS SECTION 10(A) ARE (X) TERMINATION OF THIS AGREEMENT PURSUANT TO THE TERMS OF THESE TERMS; AND (Y) RETURN OF ALL UNUSED FEES AND DEPOSITS PAID TO CARESERV FOR ANY TERMINATED SERVICE(S). (b) Each Service Level Warranty is defined in the Schedule for each Service. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN EACH SCHEDULE, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN AS IS BASIS, AND CARESERV AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. CARESERV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. 11. Confidential Information. (a) Each party acknowledges that it will have access to certain confidential information of the other party, as defined in O.C.G.A. 13-8-51(3), (collectively, Confidential Information ), which shall expressly include, but not be limited to, CareServ Technology, Customer Technology, and the terms and conditions of this Agreement, but shall not include the Customer Content. Customer Technology means Customer s proprietary technology, including Customer s internet operations design, Customer Content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party), together with any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice or developed during the term of this Agreement solely by Customer without reference to the CareServ Technology. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 11 shall last during and after the term of this Agreement. (b) The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the
disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. (c) In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of Section 11(a), the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate. (d) In the event that Customer discloses personal data to CareServ ( Personal Data ), Customer (i) agrees that CareServ or its affiliate(s) may process such Personal Data consistent with applicable law and regulation, only for the purpose of the provision of Services by CareServ to Customer or for purposes connected with the subject matter of the disclosure or business relationship between the parties; (ii) acknowledges that such processing may include the transfer of such Personal Data to CareServ s affiliates worldwide or its storage in a local or foreign database; and (iii) agree that Customer will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned. (e) Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, provided that CareServ may list Customer as a customer. 12. Limitation of Liability; Force Majeure. (a) Customer acknowledges and agrees that, except as otherwise set forth on an applicable Schedule, (i) Customer shall bear sole responsibility for adequate security, protection and backup of the Customer Content, Customer Technology and Customer Equipment; and (ii) CareServ disclaims all responsibility or liability to Customer for unauthorized access or use, corruption, deletion, destruction or loss of any Customer Content, Customer Technology or Customer Equipment. (b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CARESERV, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF CARESERV, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. (c) IN NO EVENT WILL CARESERV, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY CARESERV UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. (d) Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party. If either party is unable to perform under this Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate the affected Service(s) and applicable Order(s) upon written notice to the other party.
13. Indemnification. (a) Customer will indemnify, defend and hold CareServ, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a CareServ Indemnitee ) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and costs) payable to a third party (collectively, Losses ) and resulting from any claim, suit, action, or proceeding (each, an Action ) brought by any third party against a CareServ Indemnitee alleging (i) copyright infringement or any manner of violation of any intellectual property or other proprietary rights of a third party, defamation, publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or violation of data protection legislation, based on (x) the Customer Technology, the Customer Content or any other content or information transmitted by Customer or its client or end user using the Service; (y) the use or publication of any communications or information transmitted by Customer or its client or end user using the Services; or (z) Customer s misuse of any Service; or (i) negligence or willful misconduct of Customer. THIS SECTION STATES CUSTOMER S ENTIRE LIABILITY AND CARESERV S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS. (b) CareServ will indemnify, defend and hold harmless Customer, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a Customer Indemnitee ) from and against any and all Losses resulting from any Action brought by any third party against a Customer Indemnitee alleging (i) the infringement or misappropriation of any intellectual property right relating to the Services or the CareServ Technology; or (ii) gross negligence or willful misconduct of CareServ; provided, however that CareServ shall have no obligation under this Section 12(b) to the extent such Action is caused by (v) Customer s or a third party s modification of a Service; (w) CareServ s adherence to Customer s instructions; (x) infringing items of Customer s or third party s origin, design or selection, including, without limitation, Customer Content; (y) the operation, combination or use of Service, without CareServ s prior written consent, with products or services provided by Customer or third parties; or (z) Customer s negligence, willful misconduct or intentionally wrongful conduct. THIS SECTION STATES CARESERV S ENTIRE LIABILITY AND CUSTOMER S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS. (c) Each party s indemnification obligations hereunder shall be subject to: (i) receiving prompt written notice of the existence of any Action (provided, however, that failure to satisfy this condition shall relieve a party of its indemnification obligations only to the extent the indemnifying party is actually prejudiced thereby); (ii) being able to, at its option and expense, control the defense of such Action (provided, however, that the indemnifying party shall not, without the prior written consent of the indemnified party, settle any Action or otherwise consent to the entry of any order or judgment in any Action if such settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages); (iii) permitting the indemnified party to participate in the defense of any Action, at the indemnified party s option and expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof. In the event Customer notifies CareServ of any Action against Customer, CareServ s indemnification obligations shall be further conditioned on CareServ having the option to do one or more of the following: (x) to permit any party obligated to indemnify CareServ in such circumstances to defend or settle, at such party s own expense, such a claim or suit; (y) to procure a license sufficient to continue offering the Services (including, without limitation, Customer s use thereof); or (z) to terminate the applicable Service (provided that in the event of terminating the applicable Service, CareServ shall continue to remain liable for its indemnification obligations). 14. Non-Recruitment.
(a) During the term of this Agreement, Customer shall not, either directly or indirectly, solicit, divert or entice, or attempt to solicit, divert or entice any person employed by CareServ or engaged as an independent contractor of CareServ (a Solicited Person ) for the purpose of having such person perform duties of any nature for another person or entity. During the one (1) year period after termination of this Agreement, Customer agrees that Customer will not, either directly or indirectly, on Customer s own behalf or in the service of or on behalf of others, solicit, divert or entice, or attempt to solicit, divert or entice, any Solicited Person actually employed or engaged as an independent contractor by CareServ during the term hereof and with whom Customer had direct and substantial contacts during the term of this Agreement to perform activities for Customer that are substantially similar to those activities provided by or on behalf of such Solicited Person to CareServ. (b) In the event of a violation or threat of violation by Customer, directly or indirectly, of this Section 14(a), CareServ will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction, without any requirement that CareServ submit proof of economic damages or that CareServ post a bond or other security. Customer acknowledges that a violation of this Section 8 would cause irreparable harm and that all other remedies are inadequate. (c) Further, and without limitation of any other remedy available to CareServ, in the event Customer violates the terms of Section 14(a) then Customer shall be liable to CareServ for a placement fee equal to twenty percent (20%) of the Solicited Person s annual salary or compensation as of the date of termination of such Solicited Person s employment or engagement with CareServ. Such amount shall be due and payable to CareServ upon demand therefor. Customer agrees that the injury CareServ will suffer upon Customer s breach of the terms of Section 14(a) is difficult to estimate accurately and that the amount provided for in this Section 14(c) is not a penalty, but is a reasonable estimate of the probable loss CareServ will suffer in such event. 15. General. This Agreement constitutes the exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. The AUP and each Order and Schedule includes terms that are in addition to, and not in lieu of, these Terms. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. This Agreement may only be amended in writing by the mutual consent of the parties. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. Neither this Agreement, nor Customer s obligations or rights hereunder, may be transferred or assigned by Customer without CareServ s prior written consent. Any attempted assignment, transfer or other disposition by Customer in violation of this provision will be null, void and of no force and effect. CareServ may freely assign this Agreement without consent of the Customer. This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. There shall be no third party beneficiaries to this Agreement. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by facsimile. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party. This
Agreement and all obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the State of Georgia, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in Gwinnett County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If and to the extent that any products, software or technical information provided by CareServ to Customer under this Agreement are or may be subject to any applicable export laws and regulations, Customer agrees that it will not use, distribute, transfer or transmit such products, software or technical information (even if incorporated into other products) except in compliance with such export laws and regulations (or licenses or orders issued pursuant thereto). Time is of the essence hereof. Any Order entered into hereunder may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The parties may sign any Order and deliver such Order via facsimile or electronic transmission (with the originals to follow) or otherwise in accordance with this Section 15 of these Terms.