HEALTHCHASE TERMS OF USE:

BY EXECUTING AN ORDER FORM AND/OR BY USE OF THE SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE AND THE CONTENT (AS DEFINED IN THE DEFINITIONS SECTION AT THE END OF THIS DOCUMENT).IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. TO THE EXTENT THAT THERE IS ANY CONFLICT BETWEEN A PROVISION OF THE TERMS AND CONDITIONS AND OF AN ORDER FORM, THE PROVISIONS OF THESE TERMS AND CONDITIONS SHALL PREVAIL.

Welcome

As part of the Service, HealthChase will provide you with use of the Service, the Content, certain Support Services (depending on selection in the Order Form) and other materials supplied by or on behalf of HealthChase. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the HealthChase website incorporated by reference herein, including but not limited to HealthChase’s privacy policy. For reference, a Definitions section is included at the end of this Agreement.

The Service is offered in several editions: a Cloud Edition and a Private Cloud Edition.

1. Privacy & Security; Disclosure

HealthChase’s privacy policy may be viewed at healthchase.com/privacy-policy. HealthChase reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, must accept the terms of HealthChase’s privacy policy and will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from HealthChase from time to time. They may opt out of receiving such communications at that time or at any subsequent time. Note that occasionally HealthChase may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that HealthChase can disclose the fact that you are a paying customer and the edition of the Service that you are using. HealthChase may monitor, record and store your and your User use of and access to the Service, in compliance with its privacy policy to determine the Service is being used in accordance with the terms of this Agreement.

2. Service & Restrictions

HealthChase hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service during the Term, solely for your own internal normal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by HealthChase and its licensors.

You may not access and use the Service if you are a direct competitor of HealthChase, except with HealthChase’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the HealthChase Technology or the Content in any way or allow the Service, HealthChase Technology or the Content to become the subject of any charge, lien or encumbrance; (ii) modify or make derivative works based upon the Service, the HealthChase Technology or the Content; (iii) reverse engineer or access the Service or HealthChase Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or HealthChase Technology, or (c) copy any ideas, features, functions or graphics of the Service or HealthChase Technology.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party rights (including rights of privacy, property or publicity); (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) allow the Service to be used by users that are employed outside the country of the Billing Address without express consent of HealthChase.

You may view, download, reference and print any materials generated or posted by or on behalf of HealthChase within the Service provided that you may not, without the prior written consent of HealthChase: (i) modify and/or alter such materials in any way; (ii) distribute such materials to any third party; and (iii) remove any copyright, trademark or other proprietary notices contained in such materials.

The Service is available only to your Users. You may have the maximum number of Users set out in the Order Form. Additional Users will attract additional fees. HealthChase may in its absolute discretion accept or reject applications for User registrations. Unless expressly agreed by HealthChase, a User registration cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.

HealthChase may, in its sole discretion, issue New Releases and New Modules (for which additional fees may be payable) and may discontinue or suspend the ability to use features or functions of the Service, for the repair, improvement, and/or upgrade of the underlying technology used for the provision of the Service or for any other justifiable reason. HealthChase may, in its sole discretion, update your version of the Service. HealthChase shall not be liable for any loss you suffer caused directly or indirectly by such New Releases or New Modules and/or the absence of New Releases and New Modules.

In the case of Private Cloud Edition Customers only: (a) HealthChase shall provide you with a copy of the Private Cloud Edition Software in object code; (b) HealthChase hereby grants you a non-exclusive, non-transferable, worldwide right (i) to install the Private Cloud Edition Software in a virtualized cloud data centre inside your firewall, or in a private space dedicated to you within a data center not managed by HealthChase and (ii) to use the Private Cloud Edition Software during the Term for the sole purpose of enabling you to access and use the Service in accordance with the terms of this Agreement; and (c) all obligations, duties, restrictions, limitations, prohibitions, acknowledgements agreements, and other terms and conditions in this Agreement relating to your use and access of the Service (including without limitation the terms set out in this clause 2 and in clause 3) shall apply pari passu to your use of the Private Cloud Edition Software.

3. Your Responsibilities

You have sole responsibility and liability for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including without limitation those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge and agree that HealthChase is not responsible in any way for your use of the Service or for any activity occurring under your User accounts. You accept full responsibility for the selection of the Service to achieve its intended results. You shall: (i) notify HealthChase immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to HealthChase immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users to be in breach of the terms of this Agreement; (iii) not impersonate another HealthChase user or provide false identity information to gain access to or use the Service; and (iv) notify HealthChase immediately of any breach of this Agreement or infringement of third party rights in connection with this Agreement immediately upon becoming aware of such breach and/or infringement.

You shall permit HealthChase to inspect and have access to (either physically or remotely) any premises, and to the computer equipment located there, at or on which any software forming part of the Service used by you is being kept or used, and any records kept pursuant to this Agreement, for the purposes of ensuring that you are complying with the terms of this Agreement (including allowing only authorised Users access to the Service), provided that HealthChase provides reasonable advance notice to you of such inspections, which shall take place at reasonable times.

4. Your Data Submissions

HealthChase does not own any Submissions that you submit to the Service in the course of using the Service. You, not HealthChase, shall have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Submissions, and HealthChase shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Submissions. You shall ensure that you have appropriate ownership or licensing rights to Submissions to allow you to distribute such Submissions via the Service before delivery to the Service. You warrant and undertake that Submissions will not contain anything that violates any applicable laws, rules, codes, third party rights or the terms of this Agreement. In the event this Agreement is terminated (other than by reason of your breach), HealthChase will make available to you a file of the Submissions within 30 days of  a request being made, and this request must be made within 90 days of termination. 90 days after termination, HealthChase reserves the right to withhold, remove and/or discard Submissions without notice.

You grant HealthChase a worldwide, non-exclusive, perpetual, royalty free license to reproduce, modify the format of, store and otherwise alter and distribute the Submissions for the purposes of HealthChase complying with the terms of this Agreement including, without limitation, terms relating to any support and error connection services of the HealthChase.

You may change the Service between a Private Cloud Edition and Cloud Edition with all your Data Submissions transferred at no additional cost, however there may be an adjustment in fees to allow for the provision of hosting services.

5. Third Party Interactions

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. HealthChase and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. HealthChase does not endorse any sites on the Internet that are linked through the Service. HealthChase provides these links to you only as a matter of convenience, and in no event shall HealthChase or its licensors be responsible for any content, products, or other materials on or available from such sites. HealthChase provides the Service to you pursuant to the terms and conditions of this Agreement. You recognise, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

As part of the Content available through the Service, HealthChase may provide or make available for use content, advice or other documents which you may elect, at your discretion, to use as part of the Service for your business purposes. You take full responsibility for your use of such Content, including ensuring that content, advice or other documents you use are fit for the purposes for which you are using them and comply with all applicable laws and regulations. HealthChase shall have no liability, obligation or responsibility for any such Content, including for its accuracy, completeness, legal compliance or suitability for your business purposes or otherwise.

6. Intellectual Property

HealthChase alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the HealthChase Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the HealthChase Technology or the Intellectual Property Rights owned by HealthChase (or its licensors, where applicable). The HealthChase name, logo, and the product names associated with the Service are trademarks of HealthChase, its licensors or third parties, and no right or license is granted to use them.

7. Fees and Payment

You shall pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. The initial fees and charges will be as set out in your Order Form and may include, without limitation, the following charges: Annual Subscription Fees, Gold Support Fees, Escrow Fees, training and implementation costs and customisation costs. Payments must be made within 30 days of the date of the applicable invoice, unless otherwise set out in an Order Form, or in the relevant invoice. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for the access and use of the Service for all Users ordered for the entire Term, and all User licences added by an Administrator from the date they were added, whether or not User actively accesses and uses the Service. You must provide HealthChase with approved purchase order information as a condition to signing up for the Service. An Administrator may increase the number of Users by executing an additional written Order Form, or by adding Users from the Administration module if they have access to do so, or as otherwise agreed to by HealthChase. Added Users will be subject to the following: (i) added Users will have the right to access and use the Service until the end of the current Term (either Initial Term or renewal term); (ii) the fees for the added Users will be the then current, generally applicable fees; and (iii) Users added on or after the middle of a calendar month will be charged in full for that calendar month. You shall reimburse HealthChase for material(s) and reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the provision of the Service unless noted otherwise as a Special Term of this Agreement. HealthChase reserves the right to modify its fees and charges and to introduce new charges at any time provided written noticed is given, which notice may be provided by e-mail, including by email with the invoice containing the modified fees and charges attached. All pricing terms are confidential, and you agree not to disclose them to any third party.

8. Billing and Annual Subscription Fees

HealthChase charges and collects in advance for use of the Service. HealthChase will issue an invoice to you for the Annual Subscription Fee on the Effective Date and thereafter on each anniversary of the Effective Date or as otherwise mutually agreed upon.   The Annual Subscription Fee invoiced on an anniversary of the Effective Date may include a percentage increase in such fees, however the percentage increase shall not exceed 10% of the fees in the immediately prior period, and shall be effective immediately and thereafter. Fees for other services (such as, without limitation, training and implementation costs) will be charged on an as-quoted basis (which may or may not be set out in the Order Form). Any fixed implementation, configuration, service, activation or customisation fees are based on delivery being made in a single phase according to the Solution Delivery Framework based on the assumptions provided in the proposal detailing the fixed fees, and additional fees may be charged if the Solution Delivery Framework is not followed or if the requirements provided by You during the sales process, or the assumptions stated, are not an accurate reflection of the processes which will be required in HealthChase. HealthChase’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to provide HealthChase with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact and Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, HealthChase reserves the right to terminate your access to the Service in addition to any other legal remedies. Unless HealthChase in its discretion determines otherwise: (i) entities with headquarters and a majority of Users resident in the United Kingdom will be billed in UK pounds sterling and subject to UK payment terms and pricing schemes (“UK Customers”); (ii) entities with headquarters and a majority of Users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); (iii) entities with headquarters and a majority of Users resident in Australia will be billed in Australian dollars and subject to Australian payment terms and pricing schemes (“Australian Customers”); and (iv) all other entities will be billed in UK pound sterling, U.S. dollars, Euros or local currency and be subject to either UK or non-UK payment terms and pricing schemes at the discretion of HealthChase (“Non-UK / U.S. / Australian Customers”). If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

9. Non-payment and suspension

In addition to any other rights granted to HealthChase in this Agreement, HealthChase reserves the right to not upgrade, suspend or terminate this Agreement and your access to the Service if your account falls into arrears, including the right to not upgrade the Service. HealthChase may charge interest on overdue amounts, which are payable forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Such interest shall accrue on a daily basis and be compounded quarterly. If you or HealthChase initiates termination of this Agreement, you will be obliged to pay the balance due on your account and any fees that would have accrued during the remainder of the current Term, but for the termination of this Agreement, computed in accordance with the Fees and Payment section above. You agree that HealthChase may bill you for such fees.

HealthChase reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that HealthChase has no obligation to retain Submissions and that such Submissions may be irretrievably deleted if your account is 90 days or more in arrears or otherwise suspended or inactive.

You shall indemnify and hold HealthChase, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with any breach by you of this clause.

10. Term Expiry and Renewal

This Agreement commences on the Effective Date and continues for the Initial Term. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of one year (“Renewal Term”) at HealthChase’s then current fees. Either party may terminate this Agreement, effective only upon the expiration of the then current Initial Term or Renewal Term (as applicable), by notifying the other party in writing at least twenty (20) business days prior to the expiry of that term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), HealthChase will make available to you a file of the Submissions within 30 days of  a request being made, and this requested must be made within 90 days of termination. 90 days after termination, HealthChase reserves the right to withhold, remove and/or discard Submissions without notice. You agree and acknowledge that HealthChase has no obligation to retain the Submissions, and may delete such Submissions, more than 30 days after termination.

11. Termination for cause

Any breach of your payment obligations or unauthorized use of the HealthChase Technology, Content or Service will be deemed a material breach of this Agreement. HealthChase, in its sole discretion, may terminate your password, account, an individual User account or use of the Service or this Agreement if you breach or otherwise fail to comply with this Agreement. In addition, HealthChase may terminate a free account at any time in its sole discretion. In the event this Agreement is terminated, HealthChase will make available to you a file of the Submissions within 30 days of  a request being made, and this request must be made within 90 days of termination. 90 days after termination, HealthChase reserves the right to withhold, remove and/or discard Submissions without notice. You agree and acknowledge that HealthChase has no obligation to retain the Submissions after this date, and may delete such Submissions, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. Termination by HealthChase in accordance with the rights contained in this Agreement shall be without prejudice to any other rights or remedies of HealthChase accrued prior to termination.

On termination: (a) all rights granted to you under this Agreement shall cease unless specified otherwise; (b) you shall cease all activities authorised by this Agreement unless specified otherwise; (c) you shall immediately pay any sums due to HealthChase and any fees that would have accrued during the remainder of the current Term, but for the termination of this Agreement; and (d) If you have Private Cloud Edition, cease using the Service, delete all copies of the Private Cloud Edition Software in your possession, custody or control and certify to HealthChase that you have complied with these obligations.

You shall indemnify and hold HealthChase, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with any breach by you of this clause.

12. Representations,Warranties and Disclaimers

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. HealthChase represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof in the country in which it is being provided, provided that this warranty will not apply if any issue with the Service results from you or your User(s) having used the Service outside the terms of this Agreement, or for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by HealthChase. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HEALTHCHASE AND ITS LICENSORS.

HEALTHCHASE’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. HEALTHCHASE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13. Indemnities

You shall indemnify and hold HealthChase, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Submissions infringes the rights of, or has caused harm to, a third party; (ii) a claim alleging that your use of the Service for your business purposes or your User activity infringes the rights of, or has caused harm to, a third party; (iii) a claim alleging that any activity occurring under your User accounts or by you in using the Service infringes any applicable local, state, national and/or foreign laws, treaties and regulations, including without limitation those related to data privacy, international communications and the transmission of technical or personal data; (iv) a claim, which if true, would constitute a violation by you of your representations and warranties; or (v) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that HealthChase (a) gives written notice of the claim promptly to you (on becoming aware of such a claim); (b) at your request, gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release HealthChase of all liability and such settlement does not affect HealthChase’s business or Service); (c) following your request, provides to you all available information and assistance; and (d) has not compromised or settled such claim.

HealthChase shall indemnify and hold you and your officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) actually awarded against you, your officers, directors and/or employees arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright or a trademark of a third party in the United Kingdom, Australia or United States of America; or (ii) a claim, which if true, would constitute a violation by HealthChase of its representations or warranties; provided that you (a) promptly give written notice of the claim to HealthChase; (b) give HealthChase sole control of the defense and settlement of the claim (provided that HealthChase may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to HealthChase all available information and assistance; and (d) have not compromised or settled such claim. HealthChase shall have no indemnification obligation, and you shall indemnify HealthChase pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service (or any part of the Service, Technology and/or Content) with any of your or third party products, software, service, hardware or business process(s).

14. Limitation of Liability

SUBJECT TO CLAUSE 11, IN NO EVENT SHALL EITHER PARTY’S (AND/OR, IN THE CASE OF HealthChase, ITS LICENSORS’) AGGREGATE LIABILITY EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR IF THE SERVICE IS FOR LESS THAN 12 MONTHS, THE FEES PAYABLE UNDER THE ORDER FORM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT AND/OR SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF HEALTHCHASE TERMINATES THIS AGREEMENT AS A RESULT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU OR IF YOU TERMINATE THIS AGREEMENT WITHOUT CAUSE, YOU MUST PAY TO HEALTHCHASE AN AMOUNT EQUAL TO THE TOTAL ANNUAL SUBSCRIPTION FEES PAYABLE BY YOU DURING THE CURRENT TERM (MINUS ANY ANNUAL SUBSCRIPTION FEES ALREADY PAID BY YOU), WITHOUT PREJUDICE TO ALL AND ANY OTHER RIGHTS OF HEALTHCHASE UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE TOTAL ANNUAL SUBSCRIPTION FEES PAYABLE BY YOU DURING THE CURRENT TERM (MINUS ANY ANNUAL SUBSCRIPTION FEES ALREADY PAID BY YOU) REPRESENTS A GENUINE PRE-ESTIMATE OF THE LIQUIDATED DAMAGES LIKELY TO BE SUFFERED BY HEALTHCHASE AS A RESULT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU.

THE EXCLUSIONS IN THIS CLAUSE 14 AND CLAUSE 12 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OR DAMAGES OR FOR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION OR FOR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS IN THIS CLAUSE 14 AND CLAUSE 12 MAY NOT APPLY TO YOU.

IN NO EVENT SHALL EITHER PARTY BRING ANY CLAIM OR CAUSE OF ACTION AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

15. Local Law and Export Control

You are solely responsible for, and accept liability for, ensuring compliance with local laws and local export controls applicable to your business and to your use of the Service in connection with your business. The HealthChase Website and Service provides services and uses software and technology that may be subject to United States export controls and the export control regulations of the European Union and Australia. You acknowledge and agree that the HealthChase Website and the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, the European Union, and/or Australia maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., European Union and Australian export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S., European Union and/or Australian laws and/or regulations.

If you use the Service from outside the United Kingdom, Australia and the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United Kingdom, Australian or United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United Kingdom government, the Australian government and the United States government or appropriate body for such purposes.

16. Support Services and Error Correction

Subject to the remaining provisions of this clause (including the exclusions and limitations at the end of this clause), HealthChase will provide you with the following Support Services in relation to the Service: (a) Silver Support Services as described below, provided that you pay the Annual Subscription Fee; (b) Gold Support Services as described below, provided that you pay the annual Gold Support Fee (as indicated in the Order Form).

¹Silver Support Maximum Support Issue requests: If you receive Silver Support Services from HealthChase, you are entitled to make a maximum number of email and web support requests per annum (starting from the Effective Date) as follows: (a) for Cloud Editions, 48 Support Issues, (b) for Private Cloud Editions, 72 support issues;. Additional costs will be charged for additional support requests you make. Silver Support Services will be provided during the hours specified from the HealthChase Support Centre in the country of, or nearest to,  the Billing Address on your Order Form. Note you are entitled to unlimited support requests in the first 5 months from the Effective Date.

²Gold Support Maximum Support Issue requests: If you receive Gold Support Services from HealthChase, you are entitled to make a certain number of email and web support requests per annum (starting from the Effective Date) as follows: (a) for Cloud Editions, 72 support issues; (b) for Private Cloud Editions, unlimited support issues. Additional costs will be charged for additional support requests you make for Cloud Editions. Note you are entitled to unlimited support requests in the first 5 months from the Effective Date.

Email and Web support requests must be submitted in the format of the Fault Report Form available at www.healthchase.com/support. You must clearly identify the exact support issue, so that the HealthChase support team is able to try to resolve the issue.

Error Correction

Subject to the exclusions and limitations set out below, Support Services shall be defined to be queries you place in relation to any errors or defects found in respect of the Service (‘Error Queries’).

If any part of the Service contained in the latest New Release (the “Current Release”) fails to function as expected, you shall, as soon as reasonably practicable, notify HealthChase of such defect or error. You may place Error Queries over the phone or via email during Available hours (as Available is defined for Silver Support Service in the table above). In addition, you shall complete and submit by email a Fault Report Form available at www.healthchase.com/support, which shall contain sufficient information describing the nature of the defect or error and its impact on your ability to use the Service to enable HealthChase to classify the defect or error together with a documented example of the defect or error.

Following receipt of an Error Query and completed Fault Report Form by HealthChase, HealthChase, in its reasonable opinion, will assign the Error Query a priority level in accordance with the following criteria:

HealthChase shall use its reasonable endeavours to respond and remedy any defects or errors in Supported Software about which you have submitted an Error Query within the response and resolution times set out below:

You shall provide HealthChase with all assistance reasonably requested by HealthChase in order to enable HealthChase to remedy any defects or errors in the Service. You agree that it is reasonable for HealthChase to request, amongst other things, access to your premises and/or server(s) (either remotely or physically) in order that it can update your dedicated installation with any corrected version of the Current Release (where relevant), and that the Resolution Time for Dedicated Installations may be greater than specified above for these reasons.

Exclusions from and limitations to Support Services and error correction services:

Maintenance, support or other services in respect of the following are not included in your support allowance and the Support Services and in the error correction services described above: integration with existing systems; beta functionality; solution or configuration consulting; custom report development and other customisation of the Service and/or HealthChase Technology; defects or errors which, in the reasonable opinion of HealthChase, result from any modifications to the Current Release made by any person other than HealthChase; use of any version of the Service other than the Current Release; incorrect use of the Current Release or database or operator error/lack of training; any fault in your equipment or in any programs used in conjunction with the Current Release; any defects or errors caused by use of the Current Release on or with equipment or programs not supplied by or approved in writing by HealthChase provided that for this purpose any programs designated for use with the Current Release shall be deemed to have the written approval of HealthChase; any modification of the Current Release not authorised in writing by HealthChase; operation of the Current Release outside HealthChase’s recommended applicable operating conditions and environmental specifications which may include running the Service on server infrastructure shared with other applications and databases; improper site preparation or maintenance (in the reasonable opinion of HealthChase); accident, neglect, hazard or misuse; natural calamity; failure or fluctuation of electrical power or environmental conditions; and/or any unauthorised maintenance of the Current Release or other failure by you or a User to comply with the terms of this Agreement.

HealthChase may, in its sole and absolute discretion, elect to provide maintenance services or other support services in circumstances covered by the exclusions listed above and/or where it determines that there is not a defect with the Current Release, in which case such services will be provided at HealthChase’s then current rates. You acknowledge and agree that the software contained in the HealthChase Technology used to provide the Service is complex, and that certain errors and defects are incapable of correction or may require an inordinate amount of time and money to correct. If HealthChase, in its reasonable opinion, concludes that a defect or error falls into either of these categories, then HealthChase shall have no obligation to correct such defect or error.

In providing support and error correction services under the terms of this Agreement, HealthChase may in its sole and absolute discretion: (i) provide a local fix or patch of any relevant software; (ii) provide a temporary by pass or work around solution; (iii) schedule the resolution of the defect or error for inclusion in a subsequent New Release; (iv) modify HealthChase documentation to reflect operating limitations and correct operating procedures; and (v) request you to provide such information as may be required to enable it to identify and correct any defect or error in question or to provide support (which information you shall provide within a reasonable time). Time will not be of the essence in undertaking support and error correction services.

Failure to comply with these support and error correction provisions shall not constitute a breach of this Agreement by HealthChase.

17. Notices

HealthChase may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in HealthChase’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in HealthChase’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to HealthChase (such notice shall be deemed given when received by HealthChase) at any time by email to support@healthchase.com

18. Modification to terms

HealthChase reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon publishing modifications to this Agreement, however any changes to the Term or to the amount of Fees payable other than as provided for in clause 8 of this agreement must be agreed to in writing between the parties.

19. Assignment and Change in Control

This Agreement may not be assigned by you without the prior written approval of HealthChase but may be assigned without your consent by HealthChase to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of HealthChase directly or indirectly owning or controlling 50% or more of you shall entitle HealthChase to terminate this Agreement for cause immediately upon written notice.

20. Data Protection

This clause applies where the Customer is using the Service within the European Economic Area. In this clause, the terms “data processor”, “data controller” and “personal data” have the meanings given to them in the Data Protection Act 1998 (the “Act”). A data subject is an individual who is the subject of personal data.  Each party is responsible for complying with its obligations under the Act.  The parties acknowledge that: (a) the provision of the Services will require processing of personal data on behalf of the Customer by HealthChase; and (b) for the purposes of the Act the Customer is a data controller and HealthChase shall be a data processor.  HealthChase undertakes that, in relation to any personal data that it or any of its sub-contractors processes on behalf of the Customer it shall and shall procure that its sub-contractors shall: (a) process such personal data only in accordance with its obligations under this Agreement or otherwise on the instructions of the Customer, provided that HealthChase will not be liable for any loss, costs or damage suffered by the Customer to the extent that such loss, costs, damage or failure arises from its compliance with this clause; (b) implement appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data in compliance with the Act; take appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data and against any accidental loss or destruction of or damage to such personal data; not transfer any personal data outside the European Economic Area, other than to (i) a third party in the United States which at all relevant times adheres to the Safe Harbor Privacy Principles and associated 15 Frequently Asked Questions, approved by the European Commission (Decision of 26th July 2000 (2000/520/EC)) (a Safe Harbor Adherent) or (ii) a country which ensures an adequate level of protection by reason of its domestic law or of the international commitments it has entered into, as determined by the European Commission (Council Directive of 24 October 2005 (95/46/EC)); and (e) promptly notify the Customer of any accidental or unauthorised access to the personal data.  The Customer undertakes that it shall obtain all necessary consents from End Users and provide all information to End Users that is required to be provided under the Act for the processing of data in relation to the Services, including all necessary consents for the transfer of personal data to a Safe Harbor Adherent in the United States.  Each party shall provide all such co-operation and information as the other party may reasonably require to enable such other party to comply with their obligations under the Act including in relation to any subject access request made under the Act and/or responding to any enquiry made, or investigation or assessment of any processing initiated by the Office of the Information Commissioner.  Each party (“indemnifying party”) shall indemnify and keep indemnified the other party (“indemnified party”) against all losses, damages, costs, expenses (including reasonable legal fees and expenses) and liabilities arising as a result of a breach by the indemnifying party of its obligations under this clause and including without limitation, as a result of any claim by a data subject in respect of the processing of his or her personal data by the indemnifying party.

21. Governing Law

This Agreement shall be governed by the laws of the state of Victoria, Australia without regard to the choice or conflicts of law provisions of any jurisdiction, and 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 courts of Victoria, Australia.

22. General

No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall prevail. 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 you and HealthChase as a result of this agreement or use of the Service. The failure of HealthChase 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 HealthChase in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and HealthChase and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, act of terrorism, fire, flood, explosion or civil commotion (although nothing shall excuse you from any payment obligations under this Agreement). Except for affiliates of HealthChase (who may enforce and who benefit from this Agreement as if they were a party to it), no term of this Agreement is intended to confer a benefit on, or to be enforceable by any person who is not a party to this Agreement.

Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party.

Neither party will disclose to the media any information regarding this Agreement or work performed under this Agreement without the written consent of the other party however HealthChase may use your name, logo and a factual description of the service provided under this Agreement and issue a press release without your written consent.

23. Counterparts and Electronic Documents.

This Agreement may be executed and delivered in counterparts, including by a facsimile or an electronic transmission thereof, each of which shall be deemed an original. Any document generated by the parties with respect to this Agreement, including this Agreement, may be imaged and stored electronically and introduced as evidence in any proceeding as if original business records. Neither party will object to the admissibility of such images as evidence in any proceeding on account of having been stored electronically.

24. Questions and Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to support@healthchase.com

Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith:

“Activation” means the provision of either the HealthChase Technology, Content or Service so that you can use it within your organization. This may involve HealthChase importing spreadsheets or files containing activation data if required, or alternatively it may be fulfilled by HealthChase providing access to a server running the HealthChase Technology, Content or Service enabling you to finalize the configuration. If delays are caused by your organization that result in it not being possible for HealthChase to achieve Activation on the timeframes initially envisaged, then Activation will be deemed to have occurred 6 months from the Effective Date; “Additional Module” means any module of the HealthChase software which you add to your Service after the Effective Date, which may be a New Module, or a module which already existed as at the Effective Date, but which did not form part of the Service you ordered on your Order Form, for which an additional fee is payable, as set out in the Order Form. A description of current modules from time to time can be found at healthchase.com , as this description may be updated or changed by HealthChase from time to time; “Administrator(s)” means a license required for a user with the ability to add, edit, delete data. Administrators are the only users allowed to submit Support Requests, however an Administrator may permanently delegate their right to another named user; “Agreement” means these terms of use (whether referred to as a Master Services Agreement or a Master Subscription Agreement on the date that you first entered into an Order Form), any Order Forms, and any materials available on the HealthChase Website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by HealthChase from time to time in its sole discretion; “Annual Subscription Fee” means the fees due and payable annually in advance from the Effective Date to cover the provision of New Releases, license fees and Silver Support Services as set out in the Order Form. Note the breakdown of the Annual Subscription Fee is as follows: 10% of the fees are attributed to support and 90% of the fees are attributed to licensing; “Cloud Edition” means an edition of the Service running on a virtualised cloud data centre sharing storage and other resources with other companies; “HealthChase Website” means the web site found at www.healthchase.com, or such replacement URL as may be used from time to time; “HealthChase Technology” means all of HealthChase’s and its licensors proprietary technology (including Software, hardware, products,  algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information and New Releases and New Modules) made available to you by HealthChase in providing the Service; “HealthChase” means  a business name for a company incorporated and registered in Victoria, Australia with company number ACN 603 184 532; “Content” means the audio and visual information, games, documents, images, software, products, templates and other materials and services contained or made available to you in the course of using the Service; “Effective Date” means the earlier of either the date set out in the Order Form or the date you begin using the Service; “End User(s)” means a license required for a user that is limited to viewing and reporting on information, as well as reporting incidents and responding to and closing out actions and issues; “Gold Support Fee” means the fee payable for the Gold Support Services, if applicable, as set out in the Order Form; “Gold Support Service” means those support services described in clause 16 of this Agreement which you will receive if selected in the Order Form and for which the Gold Support Fee is due and payable annually in advance from the Effective Date, at the level set out in the Order Form; “Initial Term” means the contract term, beginning on the Effective Date and ending four years from the Effective Date or as otherwise agreed on the applicable Order Form ;“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, database rights and other trade secret rights, and all other intellectual property rights (whether registered or unregistered), derivatives thereof, and forms of protection of a similar nature anywhere in the world; “; “New Module” means any new module added to the HealthChase software after the Effective Date forming part of the HealthChase Technology and Service which from time to time is publicly marketed and offered for purchase by HealthChase in the course of its normal business, being a module which adds significant new functionality to such software. A description of current modules from time to time can be found at www.healthchase.com, as this description may be updated or changed by HealthChase from time to time; “New Release” means any new release of the HealthChase software forming part of the HealthChase Technology and Service which corrects faults, adds functionality or otherwise amends or upgrades such software, and which may include New Modules (which may attract additional fees if they are added to the service as an Additional Module); “Order Form(s)” means the form evidencing the Initial Term for the Service and any subsequent order forms, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict “Private Cloud Edition” means an edition of the Service running on a virtualized cloud data centre inside your company’s firewall, or from a private space dedicated to your company within a data center not managed by HealthChase;   “Service(s)” means the specific edition of HealthChase’s management software, data analysis, or other software identified during the ordering process, developed and operated, by or on behalf of HealthChase, or ancillary online or offline software products provided to you by HealthChase, to which you are being granted access under this Agreement, including the HealthChase Technology and the Content; “Silver Support Service” means those support services offered by HealthChase and described in clause 16 of this Agreement, for which the Support and License Package is payable, as set out in the Order Form; “Software” means the specific edition of HealthChase’s software, or other software and/or services identified in the Order Form, developed and maintained by or on behalf of HealthChase, including the HealthChase Technology and the Content; “Solution Delivery Framework” means the delivery framework defined in the Solution Delivery Framework document which is available on request from HealthChase. “Submissions” means any data, information, documents or material provided or submitted by you to the Service in the course of using the Service; “Support Services” means the support services described in clause 16 of this Agreement, including the Gold Support Services and the Silver Support Services; “Support and License Package” means the fees due and payable annually in advance from the Effective Date to cover the provision of New Releases, license fees and Silver Support Services, and which is equal to a percentage, as set out in the Order Form, of the total upfront license fees paid at the start of the Initial Term and any annual or additional module license fees and any development, customization or integration fees subsequently paid. Note the breakdown of the Support and License Package fees are as follows: 25% of the fees are attributed to support and 75% of the fees are attributed to licensing; “Term” means the Initial Term and any renewal term; and “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service in accordance with the terms of this Agreement and have been supplied user identifications and passwords by you (or by HealthChase at your request), subject to the maximum number of Users set out in the Order Form;