BUSINESS ASSOCIATE AGREEMENT

Covered Entity and Business Associate have entered into an agreement pursuant to which Business Associate is providing software as a service, technical support, data storage and professional services to Covered Entity for its business and has possession or access to Covered Entity’s protected health information.

Definitions

Catch-all definition:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

Specific definitions:

(a) Business Associate. “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Criterions Software, Inc.

(b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean {practiceName}.

(c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

Obligations and Activities of Business Associate

Business Associate agrees to:

(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;

(c) Report to Covered Entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;

(d) Report to covered entity any use or disclosure in item (c) above within 5 business days of the discovery of the incident;

(e) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;

(f) Make available protected health information in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;

(g) Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;

(h) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;

(i) To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and

(j) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

Permitted Uses and Disclosures by Business Associate

(a) Business Associate may only use or disclose protected health information as necessary to perform the services set forth in the Service Agreement.

(b) Business Associate may use or disclose protected health information as required by law.

(c) Business Associate agrees to make uses and disclosures and requests for protected health information consistent with Covered Entity’s minimum necessary policies and procedures.

(d) Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity except for the specific uses and disclosures set forth below.

(e) Business Associate may use protected health information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

(f) Business Associate may disclose protected health information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

(g) Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.

Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

(a) Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of protected health information.

(b) Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect Business Associate’s use or disclosure of protected health information.

(c) Covered Entity shall notify Business Associate of any restriction on the use or disclosure of protected health information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.

Permissible Requests by Covered Entity

Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.

Term and Termination

(a) Term. The Term of this Agreement shall be effective as of  the date this Agreement is signed by the Parties and shall terminate on the date Covered Entity terminates for cause as authorized in paragraph (b) of this Section or when all of the PHI provided by Covered Entity to Business Associate, or created/received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information in accordance with the termination provisions in this Agreement, whichever is sooner.

(b) Termination for Cause. Business Associate authorizes termination of this Agreement by Covered Entity, if Covered Entity determines Business Associate has violated a material term of the Agreement and business associate has not cured the breach or ended the violation within 90 days of discovery of the violation.

(c) Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate shall destroy or return to Covered Entity all protected health information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of  Covered Entity that the Business Associate still maintains in any form. Business Associate shall retain no copies of the protected health information.

d. When destruction of all protected health information is not possible, upon termination of this Agreement for any reason, Business Associate, with respect to protected health information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:

1. Retain only that protected health information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;

2. Destroy or return to Covered Entity the remaining protected health information that the Business Associate still maintains in any form;

3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as Business Associate retains the protected health information;

4. Not use or disclose the protected health information retained by Business Associate other than for the purposes for which such protected health information was retained and subject to the same conditions set out at under “Permitted Uses and Disclosures By Business Associate” which applied prior to termination; and

5. Return to Covered Entity or, if agreed to by Covered Entity, destroy the protected health information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

(d) Survival. The obligations of Business Associate under this Section shall survive the termination of this Agreement.

Miscellaneous

(a) Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.

(b) Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.

(c) Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.

(d) Limitation of liability. In not event shall the aggregate liability of Business Associate and its licensors exceed the amounts actually paid by and/or due from the Covered Entity within the current License Term, giving rise to such claim.  In no event shall either business Associate and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental or consequential damages (including loss of data, revenue, profits, use or other economic advantage) arising out of or in any way connected to a violation by Business Associate of its obligations in this Agreement, even if the party from which damages are being sought or such party’s licensor’s have been previously advised of such damages.

(e) Transfer of Agreement. This Agreement shall automatically stay intact if Covered Entity or Business Associate undergo any name changes or if either party becomes partially or completely part of another company or entity, whether by merger, sale of assets or otherwise, and therefore be binding for such entities.

(f) Electronic Signatures. The Parties agree that this Agreement shall be electronically signed. The Parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

IN WITNESS WHEREOF, the parties hereto have executed this Business Associate Agreement effective as of the later date signed below.

MASTER PURCHASE AND SERVICE AGREEMENT

This Master Purchase and Service Agreement (“Agreement) including any schedules attached hereto (Agreement) made {submissionDate} (Effective Date) between Criterions Software, Inc., (“Criterions”), a Delaware corporation, located at 591 Stewart Ave. Suite 530, Garden City, NY 11530 and Customer identified below (“Customer”).

Customer: {practiceName}

Whereas, Criterions is in the business of developing medical practice management software;

Whereas, Criterions offers the practice management software in a software as a service format (SaaS);

Whereas, Customer would like to subscribe to Criterions SaaS;

Whereas, Criterions is in the business of reselling computer hardware (Hardware);

Whereas, Customer would like the ability to purchase Hardware from Criterions;

Whereas, the parties desire to enter into an agreement for SaaS and Hardware.

Now, therefore, in consideration of the promises and the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Criterions and Customer agree as follows:

1. GENERAL PROVISIONS.

1.1. Agreement. Subject to the terms and conditions of this Agreement and the continued timely payment of all fees, Customer will be granted use of the SaaS for the term of this Agreement and will have the ability to purchase Hardware, other items, as set forth in Customer’s purchase invoice(s), or from original purchase, at the pricing set forth therein. In the event the parties enter into a written order for additional services or any other items hereafter, such order(s), upon execution by both parties, is incorporated into this Agreement (“Subsequent Order"). This Agreement and any schedules attached hereto constitute the entire agreement between the parties and supersede all prior or contemporaneous agreements, representations and proposals, written or oral, except for Customer’s obligations to pay support or other fees under existing contract(s), if any, between the parties.

1.2. Binding Effect. As of the Effective Date hereof, this Agreement will be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement. This Agreement to the extent signed and delivered by means of a facsimile machine or as an emailed pdf, will be treated in all manner and respects, and will have the same binding effect as an original document.

1.3. Assignment. This Agreement and any rights and obligations may not be sold, leased, assigned or otherwise transferred in whole or in part by Customer. However, if Customer remains obligated to perform throughout the Term of the Agreement and Customer provides Criterions with thirty (30) days prior written notice, Customer shall be permitted to assign this Agreement in the event of their reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of Customer. Both Parties agree that the assignment cannot involve a Criterions competitor. Criterions shall have the right to assign this Agreement and to contract with third parties to perform any or all of the services set forth herein.

1.4. Back-up Service. Criterions does not backup any data stored on the Customer’s local system. Data stored in the Criterions software is replicated and maintained by Criterions through its cloud environment. See Criterions Service Level Agreement for further details.

1.5. Virus Protection. Criterions has advised and Customer has agreed that Customer is responsible for the purchase and maintenance of Virus protection. Criterions may install such software, if requested by the Customer and purchased, but assumes no liability for any recommendations. This includes and is not limited to system or software performance, virus detection, corruption or program updates of anti-virus software.

1.6. Broadband Internet Access. The Software operations and support services are dependent on reliable broadband Internet access. Customer is required to maintain this connectivity, contract and pay for this connection. With the exception of any contracted ISP temporary interruptions of service, the Customer is responsible for any fees, charged by Criterions, for connectivity configurations, changes or Customer initiated connection delays. Customer is responsible for maintaining broadband Internet access for Criterions for purposes of support, updates, system statistics or other needs, as prescribed by Criterions. The Customer also agrees to provide prescribed port availability and configurations, prescribed by Criterions, for accessibility by Criterions. Criterions is not liable for any incidents, difficulties, irregularities or delays as a result of its internet service being unavailable or discontinued. Lack of internet access or connectivity will not excuse the Customer from any support fee obligations, even if the ability to provide these services from Criterions is halted.

1.7. Software Configuration. Customer must maintain system setup configurations as per Criterions specifications or recommendations. These specifications or recommendations are subject to change without notice.

1.8. System Irregularities. If Customer accesses or utilizes third party products or services and Criterions suspects a hardware or software irregularity, incompatibility or problem from this source (other than a Criterions developed application), Criterions will notify Customer of the problem and Customer agrees to resolve the problem at Customer’s expense.

1.9. Force Majeure. Neither party will be liable for failure to perform any of its respective obligations under this Agreement or the schedules and subsequent orders, other than the payment of fees, except for services not be provided due to a Force Majeure, if such failure is caused by an event outside its reasonable control, including an act of God, war, or natural disaster.

1.10. Waiver. No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement. No consent to a breach of any express or implied term of this Agreement will constitute consent to any prior or subsequent breach.

1.11. Severability. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this agreement shall remain unaffected.

1.12. Dispute. Criterions and Customer agree to make diligent efforts through negotiation to settle any disputes arising out of or related to this Agreement. This Agreement shall be construed and interpreted in accordance with the laws of the State of New York. Further, in the event of any claim or cause of action arising from this Agreement, Criterions and Customer consent to the exclusive jurisdiction of the Federal District Court for the Eastern District of New York and the state courts of Nassau County, New York, and the parties waive any objection they might have to personal jurisdiction and venue in said forums.

1.13. Amendments. All modifications or amendments to this Agreement will not be effective unless made in writing and signed by an authorized representative of each party.

1.14. Notice. Any notice required or permitted to be given hereunder shall, except where specifically provided otherwise, be given in writing by personal delivery, certified mail, or overnight delivery to the address set forth herein for such party, and the date upon which such notice is received shall be deemed to be the date of such notice, irrespective of the date appearing thereon.

1.15. Confidential Information. Confidential Information shall mean all information provided by one party to the other party or available to such party, which is not generally known to others, whether or not marked as confidential, provided by or learned about by a party in the course of the parties' dealings with one another, or their predecessors, including proprietary information, Documentation, information about Criterions Software and Third Party Software, computer and software systems and programs, ideas, concepts, the terms of this Agreement patent data and any other information not generally known to others. Notwithstanding the foregoing, Confidential Information does not include information that (i) is known to the receiving party at the time of disclosure to the receiving party as demonstrated by written or electronic records of the receiving party, (ii) is or becomes generally known through no wrongful act of the receiving party, (iii) has been rightfully received by a party from a third party authorized to make such disclosure without restriction, (iv) has been approved for release by written authorization of the disclosing party, or (v) is required by law or regulation to be disclosed, to the extent so disclosed after delivery of prior written notice to the other party.

1.16. Definitions. As used in this Agreement and any Subsequent Orders, the following terms will have the meanings described below.

BAA means the Business Association Agreement in place between Criterions and Customer that governs security over personal health information and overall HIPAA compliance.

C-CDA means Consolidated Clinical Document Architecture, a document standard for the transmission of structured summary data between providers and providers and patients.

Software means (i) the specific version or release of the Criterions software programs to which Customer is provided access as part of the Service as listed in Estimate or Invoice and (ii) all subsequent versions, modifications, and Updates provided to Customer under this Agreement.

SaaS Services refers to the specific internet-accessible service identified in the purchase invoice or Subsequent Order that provides use of Criterion’s Software that is hosted by Criterions or its services provider and made available to Customer over a network on a term-use basis.

SaaS Payments shall mean the amounts due from Customer and paid to Criterions for the SaaS as defined in Customers estimate or invoice.

Documentation means the release notes or instructions in electronic format accompanying or associated with the Software available to Customer.

Software Error means a verifiable and reproducible failure of the Criterions Software replicated by Criterions, and does not conform to the Documentation that accompanied it.

Users refers to the number of authorized unique users, PCs or authorized healthcare providers who author clinical records.

Renewal Term is defined in Section 4.1.

Subscription Term is defined in Section 4.1 and shall mean that period specified in the purchase invoice or Subsequent Order during which Customer will have on-line access and use of the Software through Criterions SaaS Services. The Subscription Term shall renew for successive twelve (12) month periods unless either party delivers written notice of non-renewal to the other party at least seventy five (75) days prior to the expiration of the then-current Subscription Term.

Term is defined in Section 4.1 of this Agreement.

Third Party Software means software licensed, owned, or provided, by a third party and/or licensed or delivered by or through Criterions to Customer under this Agreement or any Subsequent Order.

Update is defined in Section 10.4 of this Agreement.

2. SOFTWARE

2.1. SaaS Services. During the Subscription Term, Customer will receive a non-exclusive, non-transferable right to use and configure the SaaS Services for Customer’s internal business operations based on the number of authorized unique users, PCs or authorized healthcare providers who author clinical records (as indicated on purchase invoice or monthly maintenance fee Invoice).

2.1.1. Ownership and Copies. Except as expressly set forth in this Agreement, Criterions retains all rights to and interest in and to the Software and SaaS Services including, without limitation, the Documentation, all inventions, creations, expressions, improvements, computer programs, source codes, design specifications and documentation, operating instructions and all other documentation, whether patentable or not patentable,whether created, conceived or designed by Criterions alone or in conjunction with Customer. Criterions reserves all rights not expressly granted to Customer. Customer may copy portions of the Documentation as needed for distributing software manuals to authorized Users.

2.1.2. Ownership of Data. Criterions shall not obtain any ownership rights, title or interest to Customer’s data files. The SaaS Service supports the capability to export records in C-CDA format. Customer can export data using this capability at no expense during the Subscription Term.

Upon expiration or termination of the Agreement for any reason, upon Customer’s request Criterions agrees to provide Customer with a copy of Customer’s data files as identified below:

1. As the data file exists at the date of expiration or termination on secure e-media in a C-CDA file in accordance with HL7 C-CDA Release 2.1 for the fee of Two Thousand Five Hundred Dollars ($2,500) per provider as defined by User.

2. Export of Patient demographics on secure e-media in accordance with HL7 ADT 2.3 for the fee of One Thousand Five Hundred Dollars ($1,500) per practice.

3. Export of documents in their native format of JPG, TIFF or PDF, with an index of the document consisting of Patient Acct #, Document Type Name, Document Date and Filename on secure e-media in accordance with HL7 ADT 2.3 for the fee of Two Thousand Five Hundred Dollars ($2,500) per provider as defined by User.

Customer agrees that the above fees are fair and reasonable fees for the efforts required to return data. Customer understands that return of data in any other format will be considered a custom export and will be performed pursuant to a specific statement of work at a different fee. Criterions shall only release Customer data to Customer.

2.2. Limitations. If Customer provides billing services for medical providers outside of their practice, the medical providers must be authorized users of the Software in accordance with this Agreement. These limitations will survive termination of this Agreement for any reason and shall apply to any software that is the subject of, or part of, any prior agreement(s) between the parties and/or their predecessors. Criterions reserves all rights not expressly granted to Customer.

2.3. Reverse Engineering. Except as expressly authorized under this Agreement, CUSTOMER shall not (i) sell, rent, lease, timeshare, encumber, license, sublicense, transfer or assign the Software, Documentation or Third Party Software (collectively “Application Package”); (ii) remove or modify any program markings or notice of proprietary rights of the Application Package; (iii) modify the Application Package; or (iv) attempt to decompile, disassemble or reverse engineer the Application Package in whole or in part, or otherwise attempt to derive the Source Code of the software.

2.4. Third Party Software. For Third Party Software licensed through Criterions, Criterions will transfer to Customer only the rights Criterions has in the Third Party Software delivered to Customer. Customer shall have no ownership interest in the Third Party Software. THIRD PARTY SOFTWARE IS TRANSFERRED TO Customer "AS IS'. Customer's right to use the Third Party Software, all warranties and updates regarding the Third Party Software, and all other terms and conditions of said license will be governed by the separate agreements included with the Third Party Software and the Agreement, and as may be accepted by Criterions, on Customer's behalf, at the time of installation. Customer agrees to implement any necessary updates, modifications, or additions to Third Party Software.

3. FEES AND PAYMENTS

3.1. Fees and Payments. The Purchase Invoice specifies the amounts to be paid to Criterions for any Hardware as well as the amounts to be paid to Criterions for SaaS Services. Customer agrees to pay Criterions the SaaS Payments, the payments for the Software use rights, and expenses due Criterions according to the terms specified in the Customer’s Purchase Invoice. Customer agrees that the specified SaaS Payments for each period will be due and owing in full at the commencement of each period.

3.2. Failure to Pay. With the exception of a formal request to terminate services from the Customer, failure to pay the SaaS Payments in accordance with the Agreement (after 20 days written notice to the Customer of an overdue Software Services Payment) will result in forfeiture of Customer’s right to receive the SaaS Services described in Customer’s Purchase Invoice and/or any other support or services. In addition to the foregoing, Criterions will charge a late fee on fees, amounts and expenses not paid as provided in this Agreement at the lesser of the maximum amount chargeable by law or one and one-half percent (1.5%) per month commencing fifteen (15) days after the date payment was due. In addition, Customer agrees to pay all reasonable expenses incurred by Criterions in enforcing any collection of fees or other rights under this Agreement including, but not limited to, all expenses of any legal proceeding related thereto including, but not limited to, legal fees, costs and other fees including filing fees.

3.3. Payment Terms. An initial payment may be due upon the Effective Date of this as reflected in any agreed terms in the Customer’s Invoice. The balance is due and payable by Customer to Criterions according to the terms agreed in the Customer’s Invoice.

3.4. SaaS Fee Adjustments. Criterions may adjust monthly SaaS fees. Criterions will provide Customer with thirty (30) day advance written notice of increase in fees and shall limit increases to no more than once in any 12-month period.

3.5. Taxes. The fees and expenses due to us as set forth in this Agreement are net amounts to be received by Criterions, exclusive of all sales, use, withholding, excise, value added, and ad valorem taxes incurred by Customer or imposed on Criterions in the performance of this Agreement or otherwise due as a result of this Agreement. Customer will be responsible for and will pay any and all such taxes and charges.

3.6. Expenses. Unless specified otherwise, Customer will reimburse Criterions for all out-of-pocket travel expenses reasonably incurred in rendering services to Customer. Expenses will include reasonable travel and transportation expenses, lodging and meals, and the cost of any shipping costs, communications charges, telephone calls (except customer support calls), and other related expenses.

4. TERM AND TERMINATION.

4.1. Term. The Term of the Agreement will commence on the Effective Date and continue for one year. The term shall automatically renew each year thereafter for an additional one year period unless terminated as set forth below. Customer shall have the right to terminate the Agreement upon delivery of written notice at least seventy five (75) days prior to any scheduled renewal date.

4.2. Termination for Cause. In the event that either party materially defaults in the performance of any of its obligations under this Agreement and does not substantially cure such default or commence a cure, within twenty (20) days after being given written notice specifying the default, the non-defaulting party may, by giving written notice to the defaulting party, terminate this Agreement as of a date specified in such notice of termination. The specified date shall be at least thirty (30) days after the notice of termination, except for termination for non-payment, which may be immediate after the 30-day cure period. For clarity, the failure of Criterions to meet uptime requirements shall not trigger this clause and does not rise to the level of material default until there are continuous missed levels rising to the point that the SaaS Services are not functional.

4.3. Effect of Termination. Upon termination and/or non-renewal of this Agreement Customer’s rights to access data and services described herein, and in any prior agreement(s) between the parties and/or their predecessors, will be terminated, and Customer will pay Criterions for all services performed by Criterions up to the date of such termination and/or non-renewal and all other amounts Customer owes to Criterions in accordance with the Agreement. Customer acknowledges and agrees that Criterions will have no liability for any loss of data resulting from Criterions exercising the rights set forth in this paragraph.

4.4. Survival. Termination of this Agreement by either party pursuant to the provisions of this Agreement will terminate each party's obligations under this Agreement except for the provisions of Section 1 (General Provisions), Section 2.2 (Limitations), Section 3 (Fees and Payments), Section 4.3 (Effect of Termination), Section 4.4 (Survival), Section 5 (Non-disclosure and Confidentiality), Section 7.2 (Warranty Limitations), and Section 9 (Limitation of Liability), all of which survive termination and/or non-renewal of this Agreement for the applicable statute of limitations period.

5. NON-DISCLOSURE and CONFIDENTIALITY. Each party may have access to Confidential Information of the other party. The recipient of such Confidential Information agrees to hold such information in strictest confidence and not to disclose, or cause to be disclosed, the information to any third party, other than an authorized agent or contractor of Criterions or Customer, or utilize the Confidential Information for any purpose other than as expressly contemplated by this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. Each party agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for breach of this paragraph and that such breach would cause irreparable harm to the other; therefore the non breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it may have at law or under this Agreement.

6. REMOTE ACCESS. Customer will provide Criterions with remote access to the Software for purposes of performing support services according to Criterions’ support criteria. Customer will provide and maintain at Customer’s expense the necessary network connection and software to allow remote access by Criterions. Criterions will use reasonable efforts to comply with all of Customer’s security and safety precautions associated with Criterions’ remote access of the Software. Criterions will not be responsible for losses from data corruption, loss of data, non-scheduled downtime, or any other software losses associated with the provision of dial-in services, whether arising in contract, tort, negligence, strict liability, products liability, or otherwise, except for its gross negligence or intentional misconduct.

7. WARRANTY

7.1. Limited Warranty. Criterions warrants that any professional services provided under this Agreement shall be performed with that degree of skill and judgment normally exercised by recognized professional firms performing the same or substantially similar services. In the event of any breach of the foregoing warranty, provided Customer has delivered to Criterions timely notice of such breach as hereinafter required, Criterions shall, at its own expense, in its discretion either (1) re-perform the non-conforming Services and correct the non-conforming Deliverables to conform to this standard; or (2) refund to Customer that portion of the Price received by Criterions attributable to the non-conforming Services and/or Deliverables. No warranty claim shall be effective unless Customer has delivered to Criterions written notice specifying in detail the non-conformities within 90 days after performance of the non-conforming Services or tender of the non-conforming Deliverables.

Criterions warrants that during the Term, the Criterions Software (i) will substantially conform to the written Documentation provided by Criterions to Customer, when used by the Customer in a manner that is consistent with the Documentation; and (ii) materially conforms to the Software’s intended use as a practice management or electronic medical record system. Customer’s exclusive remedy for a breach of the foregoing software warranty will be, at Criterions’ option, to repair or replace the non-conforming Software or for the Customer to terminate this Agreement. This software warranty will not apply and Criterions will be neither obligated nor responsible to repair, replace, or grant a refund with respect to the Software that does not conform as a result in whole or in part of one or more of the events indicated in Section 10.5 (Limitations & Exclusions).

7.2. Hardware Warranties. Criterions will pass the Manufacturer’s warranty to Customer for any hardware sold to Customer under this Agreement.

7.3. Warranty Limitations. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CRITERIONS MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. CRITERIONS DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTIBILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN AS PROVIDED IN THIS AGREEMENT, CRITERIONS DOES NOT WARRANT THAT THE SOFTWARE OR ASSOCIATED DOCUMENTATION WILL FULLFILL CUSTOMER'S REQUIREMENTS OR THAT THE SOFTWARE AND DOCUMENTATION ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT DATA MIGHT BE LOST AS A RESULT OF THE SOFTWARE.

THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE FOR ON-LINE CONTROL EQUIPMENT OR WITH INTERACTION OR INFORMATION DEALING WITH DIRECT LIFE SUPPORT MACHINES, OR SYSTEMS IN WHICH FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENT DAMAGE.

7.4. Entire Agreement. This Agreement sets forth the entire understanding and agreement between Customer and Criterions and may be amended only in a writing signed by both parties. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS OR PROMISES OF THIS AGREEMENT.

8. Infringement Indemnification. Criterions will at its own expense defend any action brought against Customer to the extent that it is based on a claim that the Criterions Software when used as authorized by this Agreement infringes upon a United States patent or copyright; provided that Customer notifies Criterions of any such claim; and provided that Criterions will have the exclusive right to control the defense. If, as a result of such a claim, litigation or threat of litigation, Customer is enjoined from using the Criterions Software, Criterions may at its sole option and expense procure for Customer the right to continue to use the Criterions Software, or at Criterions sole option and expense, may replace or modify the Criterions Software so as to settle such claim, litigation or litigation threat. If such settlement or modification of the Criterions Software is not reasonably practical, Criterions may discontinue and terminate Customer’s data access and this Agreement upon written notice to Customer. This describes Criterions’ entire liability with respect to infringement of any copyrights or patents.

Indemnification protection is conditioned upon the Customer (a) promptly notifying Criterions of the claim, (b) Criterions having sole control of the defense and settlement of the claim, and (c) Customer providing the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

9. LIMITATION OF LIABILITY.

9.1.Limitation of Remedy. Criterions liability will be limited to actual, direct losses or damages incurred in accordance with Section 9.2. In no event will Criterions be liable for any special, indirect, incidental, speculative, punitive or consequential damages or loss of goodwill in any way relating to this Agreement or resulting from the use of, or inability to use, the products or the performance or non-performance of any services, including without limitation, damages for loss of profits, revenue, data or use incurred by Customer or any third party, even if Criterions has been notified of the possibility of such damages.

9.2. Maximum Liability. IN NO EVENT WILL CRITERIONS’ LIABILITY FOR ANY COSTS, EXPENSES, OR DAMAGES TO CUSTOMER OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID TO CRITERIONS BY THE CUSTOMER IN THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.

10. SUPPORT.

10.1. Point of Contact and Support. Customer agrees to appoint one of Customer's trained employees to clear all support related requests and serve as the primary point of contact with Criterions. Customer agrees to appoint a second qualified employee as a backup. Either employee will be responsible for contacting Criterions for support services.

10.2 Software Support Service & Scope. During the Term and any Renewal Term, Criterions and Customer agree that if the Software does not function and perform in accordance with the Documentation, as this term is defined in the Agreement, this represents an error and/or malfunction (“Deviation”) in the Software. In the event that the Customer encounters a Deviation in the Software, it shall communicate the circumstances and any supporting information to Criterions. Upon receipt, Customer and Criterions will respond as follows:

Customer shall provide Criterions with notification of the error, fully describing the error condition and providing necessary backup documentation reproducing the error condition if such documentation is readily available. If after reasonable analysis Criterions cannot reproduce the error, Customer will be responsible for reproducing the error by remote connection with Criterions while in contact with Customer employees.

For any verified error, Criterions will schedule a correction for the error in a future version, with consideration for the impact of the error on the Customer's use of the Software. Criterions will reasonably weigh the effort and time required to correct the error with the effect of the error on Customer.

10.3. Support for Third Party Software. Software Support Service will not include support for any Third Party Software unless support for such software is indicated in this Agreement or in a Subsequent Order, and Customer is paying an applicable Software Support Fee for said Third Party Software, and said Software Support Services will be rendered only to the extent necessary to operate the Criterions Software.

10.4. Updates. "Update" means a modification or enhancement to the supported Software only that is generally provided by Criterions or Third Party Software provider to all Customers of the Criterions Software as part of the Criterions Software Support. All such updates will be subject to the terms and conditions of this Agreement. Compatible hardware and software (Equipment) will be defined in the release notes and Customer is obligated to provide Equipment to meet the specifications to ensure SaaS functionality. If Customer fails to provide compatible Equipment, Criterions will have no liability or obligation to Customer. Maintaining compatible Equipment is at Customer's expense. Updates may be installed at Criterions discretion. Criterions makes no warranties or representations regarding the frequency of Updates or the extent to which Updates are made available at all. Criterions assumes no financial liability of functionality and or data corruption as the result of any Update received by the Customer; provided, Criterions shall be required to remedy the functionality and or data corruption to its original state prior to the upgrade.

New products (“New Products”) may be added to the Software by Criterions from time to time. Compared to an Update, New Products substantially increases its functionality and capability. Criterions, in it sole discretion, shall decide which upgrades and improvements will be issued as Revisions without charge and which shall be issued as New Products for which there may be a charge.

10.5. Limitations & Exclusions. Criterions will not be responsible for providing Software Support Services relating to the following: (a) problems that result from Customer's improper use of any software or hardware; (b) problems caused by changes, alterations or revisions made by Customer or on Customer's behalf (other than by Criterions); (c) problems caused by Customer's data, network, operational or other environmental factors not within the direct control of Criterions not present at the time of the installation and disclosed or otherwise made known to Criterions; (d) third party databases, (e) software customizations other than those made by Criterions on Customer’s behalf; (f) any use of the Software in violation of this Agreement and (g) Software Support Services will not include any problems or errors caused directly or indirectly by any hardware not supported by Criterions and any hardware not in accordance with Criterions specifications. Customer will reimburse Criterions for all reasonable expenses incurred and time spent in responding to false maintenance or support claims, repairing any of Customer's alterations or revisions to the Software and correcting problems or other defects resulting from the occurrence of one or more of the events described in the items above. Such services will be invoiced to Customer at Criterions’ then current time and material rates and will be payable upon receipt of invoicing.

10.6 Down Time. As defined in Attachment 1, Criterions Service Level Agreement

11. ACCESS AND TRAINING.

11.1. Access to Services. Criterions will provide customer with access to the SaaS Services. Customer agrees and acknowledges that any of Customer’s existing software or hardware, including printers and personal computers which do not meet the specifications set by Criterions may not function with the Software. Criterions will not be responsible for any damages or costs incurred by Customer as a result of non-integration or any problems with, or caused by any equipment which does not meet Criterions’ specifications.

11.2. Training and Project Management Services. Criterions will provide Customer training, project management, conversion and other services as prescribed in the purchase Invoice. Customer agrees to pay for training and project management services at the rates set forth in the purchase invoice. In the case of on-site training cancellations, Customer will reimburse Criterions for the cost of any non-refundable airline tickets purchased in advance for the express purpose of training Customer, regardless of the cancellation date. Any additional training beyond that described in Customer’s Purchase Invoice will be quoted at then current rates and billed separately. Installation and/or Conversion services apply only to the extent these services are included in this Agreement or a Subsequent Order. Customer agrees to pay the amount that has been billed for products and services delivered or provided to date regardless of the stage of Customer’s implementation.

11.3. Data Conversion. Customer shall be responsible for obtaining certain information and assistance from third parties doing business with Customer, including, but not limited to, delivering live sample data on the transfer medium, format, and file structure as, and when, designated by Criterions in order for Criterions to perform the work herein (e.g. data conversion and hospital interfaces). Customer understands and agrees there are limits on what data Criterions can convert and what Customer must do before Criterions can complete the conversion process. As every conversion is unique, what data can actually be converted as well as the cost and time required to complete this may vary widely. Conversion will usually require that Customer's existing system be "down" for a period of time. Conversion services not listed in the purchase invoice or in a Subsequent Order will be invoiced to Customer at then current time and billed separately. Criterions assumes no liability for conversion data integrity. Customer must inspect data prior to moving forward and notify Criterions, in writing if any irregularities exist. Failure to do so requires the Customer to correct this matter.

12. HIPAA Compliance. Criterions warrants that the Criterions Software is designed to support compliance with the rules current detailed and set forth as of the date of this agreement that define the applicable standards of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as published by the Department of Health and Human Services and as amended from time to time and Criterions will make any modifications necessary to support compliance with the HIPAA rules currently detailed and in effect as of the date of this Agreement.

13. Cost of Services. Notwithstanding anything in the Agreement to the contrary, the parties agree and acknowledge that Customer is contracting for the SaaS Services reflected in the purchase invoice pursuant to this Agreement.

14. Hardware Title and Shipping. Title to hardware shall pass to Customer upon full payment of the hardware as indicated on the Customer’s Purchase Invoice. If customer is to pay shipping costs for the hardware it will be indicated on the Customer’s Purchase Invoice.

15. Compliance with Laws. Each Party agrees to fully comply with all relevant export laws and regulations of the United States and other applicable export and import laws.

16. Audit Rights. Customer’s records with regard to use of the SaaS and Third Party Software shall be made available to Criterions at all reasonable times at Criterion’s request to audit Customer’s compliance with this Agreement and Customer shall certify to the truth and accuracy of such records. Customer shall provide reasonable assistance during any audit. Criterions may share audit results with Third Party Software vendors or assign the audit rights to relevant Third Party Software vendors.

17. Third Party Beneficiary. The parties agree that Oracle is a third-party beneficiary to this Agreement.

18. Uniform Computer Information Transactions Act. The Uniform Computer Information Transactions Act is expressly excluded from this Agreement.

This is the end of Terms and Conditions.