1. USE OF SOFTWARE AND RECEIPT OF SERVICES SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EXPERITY MASTER SERVICE AND LICENSE AGREEMENT AS MAY BE AMENDED FROM TIME TO TIME.Client acknowledges and agrees Client’s use of any Experity proprietary software and receipt of services offered by Experity shall be expressly subject to the terms and conditions set forth in this Experity Master Service and License Agreement, which Experity update from time to time.
2. EXPERITY TECHNOLOGY.
   • 2.1. Grant of Rights. Subject to Client’s compliance with the terms and conditions contained in this Experity Master Service and License Agreement and each Service Order (collectively the “Agreement”), Experity grants to Client the following rights on a non-exclusive, non-sublicenseable, and non-transferable basis during the Term: (a) the right to access the features and functions of the Platform and Patient Engagement Solutions (if ordered), solely for use by Users; (b) the license to install and use any software provided by Experity as part of the Experity Technology; and (c) during the Term, a right to make a reasonable number of copies of the Documentation solely for Client’s internal use in connection with the foregoing rights. This license is limited to use on Client-owed or utilized computers.
   • 2.2. Users. Client represents and warrants that all Users will be employees or authorized affiliates of Client. Client will notify Experity of all Users including, but not limited to, any authorized affiliates. In the event Client elects to utilize a third party medical billing entity (a “Third Party Biller”), Client shall notify Experity and provide the following information: (a) name of Third Party Biller, (b) number of Users requested by the Third Party Biller, and (c) lead contact with Third Party Biller. Experity shall be entitled to charge an additional per User monthly fee in the amount of Fifty and 00/100 Dollars ($50.00) for each Third Party Biller User in excess of the initial twenty (20) Users associated with said Third Party Biller.
   • 2.3. Platform and Patient Engagement Solutions Access. Client will: (a) provide to Experity information necessary to enable Experity to perform under this Agreement; (b) be responsible for maintaining the confidentiality of all Users’ usernames and passwords; (c) be solely responsible for all activities that occur under said usernames; (d) not to allow a third party to use Client’s account, usernames or passwords at any time; and (e) notify Experity within one (1) business day of any actual or suspected unauthorized use of its account.
   • 2.4. Non-Provider Ordering, Provider Sign-off without Password and Chart Signing Functionality. Experity shall enable the Experity Technology to allow for non-provider ordering of certain tests, the ability to sign-off without having to re-enter password and sign off on charts (the “Non-Provider Ordering, Provider Sign-off without Password, and Chart Signing Functionality”) with the understanding Client has in place certain processes and leadership to ensure the proper ordering and chart sign off. If preferred by Client, upon request from the Client, Experity will disable the Non-Provider Ordering, Provider Sign-off without Password, and Chart Signing Functionality.
   • 2.5. Release of Liability for Non-Provider Ordering, Provider Sign-off without Password and Chart Signing Functionality.. Between the Parties, Client is responsible for the acts and omissions of someone other than a rendering provider ordering or signing a patient chart.
   • 2.6. Optional Services. Client shall be entitled order the following optional services, which if ordered will be identified on the Service Order above:
     • 2.6.1. Demographic & Medical Record Document Import. Prior to Client’s Go-Live Date, Experity shall import the following data from the Client’s previous system into the Experity system, subject to any data export limitations of Client’s previous system: (a) patient demographic data provided by Client via the patient import template provided by Experity’s implementation team (the “Patient Import Template”), (b) Last visit data so long as Client has provided the last service date via the Patient Import Template, and (c) medical record data as long as they are PDF/IMAGE documents in tiff, pdf, jpg or word format and contain the necessary patient identifier within the image file and file name. Please note, demographic data does not include insurance or financial account balance information.
     • 2.6.2. Patient Portal Services. Experity shall enable its patient portal services that will enable a patient to access an online portal and view secure information from Client. Client understands: (i) the patient portal services include functionality provided by a third party and are limited to features required for meaningful use and have been integrated with the Experity Software; and (ii) Experity is not responsible for Client’s attestation or eligibility for government programs requiring meaningful use of portal services.
     • 2.6.3. Mass Text Functionality (Calibrater Health Technology). At Client’s election, Client shall be entitled to send a group of text messages to patients that have previously visited Client’s clinic(s) (the “Mass Text Functionality”. In order to utilize the Mass Text Functionality, Client shall notify Experity the number of texts Client wants to send, Experity will then coordinate with Client, send the text(s) and invoice Client at the rate set forth herein. For avoidance of doubt, Client shall be invoiced on a per text sent to recipient basis. By way of example, if Client elects to have a mass text sent to 15 former patients, Client shall be invoiced an amount equal to the per text rate set forth herein multiplied by 15. Fee for functionality shall be quoted and contracted for, at time of request.
     • 2.6.4. ePrescribing of Controlled Substances (EPCS). A prescriber will be able to electronically prescribe controlled substances per United Stated Drug Enforcement Administration requirements with 2-factor authentication. Client shall be required to complete an identity proofing process with the third party vendor of Experity’s choosing prior to their authorization to electronically prescribe controlled substances. Client agrees and shall be responsible for purchasing tokens from said vendor.
     • 2.6.5. Immunization Registry and Syndromic Surveillance (“IRSS”). Client will: (i) determine which registries and agencies to which they intend to submit information; (ii) register each provider with the intended registries and agencies, and if the registry or agency is not ready to accept information electronically then Client will obtain a certificate from the registry or agency stating same; (iii) communicate a list of intended registries and agencies to Experity support in writing or by email; (iv) provide Experity support contact with the required information for each provider who will submit information to the intended registries and/or agencies; and (v) monitor and notify Experity when registries and/or agencies are ready to receive electronic data (Client understands it may take up to two (2) months after notification to activate electronic data transmission. A connection is considered LIVE when the first transmission. Experity will: (i) provide integrated functionality for electronic submission of IRSS information to registries and agencies as directed by Client; (ii) set up each provider in Experity IRSS services, test/certify each provider’s IRSS connections, and provide ongoing Client support; and (iii) add new providers as requested by Client. Client understands that Experity is not responsible for Client’s attestation or eligibility for government programs requiring meaningful use of IRSS services.
   • 2.7. Restrictions. Client will use the Experity Technology solely in accordance with the Documentation and as contemplated by this Agreement and will not: (a) copy, modify, or duplicate the Experity Technology or create any derivative work thereof; (b) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any component of the Experity Technology is compiled or interpreted; (c) license, sublicense, sell, resell, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Experity Technology available to any third party; (d) interfere with or disrupt the integrity or performance of the Experity Technology or the data contained therein; (e) attempt to gain unauthorized access to the Experity Technology or its related systems or networks; (f) remove, alter, or obscure any proprietary notices associated with the Experity Technology or Documentation; or (g) utilize the Experity Technology in order to (i) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Law; (ii) upload, send, or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive, or tortious material; or (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs.
   • 2.8. Risk of Use. Use of the Experity Technology is at the sole risk and responsibility of Client and any practitioner, healthcare provider, User or Facility using the Experity Technology. This Section 2.7 will not diminish Experity’s commitments under this Agreement.
3. CLIENT OBLIGATIONS.
   • 3.1. System Operations. Client will: (a) obtain and maintain the minimum system requirements set forth in the Documentation; (b) reasonably perform any tests or procedures recommended by Experity for the purpose of identifying and/or resolving any problems in using the Experity Technology; and (c) be responsible for purchasing, installing, operating, updating, and maintaining all information technology equipment and solutions needed to support current and future versions of the Experity Technology and any functionalities utilized in connection therewith.
   • 3.2. Client Data. Client will procure all rights and privileges to obtain, upload, and transfer the Client Data to Experity under the terms of this Agreement. Additionally, to the extent Client authorizes any third party to have access to Client Data through the Experity Technology, Client is solely responsible for such third party’s access to and use of the Client Data. Client must verify the accuracy, completeness, and appropriateness of all Client Data before such information is utilized. Experity’s obligations are limited to displaying Client Data provided to Experity. Client acknowledges and agrees that the professional duty to treat the patient lies solely with Client, and use of information contained in or entered into the Experity Technology, or provided through the Services, in no way replaces or substitutes for the professional judgment or skill of such entity or provider. Client is responsible and liable for the documentation related to, and the treatment of, patients as to whom Client and its personnel access or use the Experity Technology or Services, including responsibility for personal injury or loss of life.
   • 3.3. System Use and Experity Audit Rights. Client is required to use the Experity Technology for all applicable patient visits at all locations maintained by Client. Experity may audit Client’s use of the Experity Technology. If Experity finds that Client has followed the terms of this Agreement, Experity shall be responsible for all costs related to the audit. If the results of the audit reveal that Client has violated the terms of this Agreement, including Client’s use of unlicensed copies of Experity Technology, photocopies, reproductions, or derivative versions of Experity Technology, Client shall be responsible to pay Experity One Hundred and 00/100 Dollars ($100.00) per patient visit documented or processed in violation of this Agreement and all costs related to the audit. If Experity finds that Client has reduced or discontinued use of Experity Technology, Experity shall be entitled to deem said reduced or discontinued use, an Unauthorized Termination of this Agreement.
   • 3.4. Notification Regarding Change of Client Facilities. Client will provide Experity with prompt written notice of any relocation of Client Facilities or additional Client Facilities.
   • 3.5. Non-Solicitation of Experity Employees. During the Term and for a period of two (2) years after the termination of the Service Order, regardless of the basis for, or Party causing termination, Client shall not, directly or indirectly, (i) attempt to hire away or actually hire any then-current employee of Experity or its affiliates, or (ii) persuade any such employee to leave employment with Experity or its affiliates.
   • 3.6. Patient Consent to Receive SMS Messages and Authorization to Use Feedback. Client shall obtain each patient’s consent to receive short message service (“SMS”) text messages via the patient consent forms utilized by Client. Client shall also obtain patient consent before utilizing said patient’s feedback for marketing purposes including, but not limited to, displaying patient feedback on Client’s website. For avoidance of doubt, the obligation to obtain each patient’s consent to communicate via SMS text messages, to monitor and act upon any patient election to subsequently opt out communicating via SMS text messages, and to obtain consent to use feedback for marketing purposes remains solely with Client.
   • 3.7. Integrated Merchant Services Account. In the event Client desires an integrated e-merchant services solution, Client will enter into an e-merchant agreement with a merchant services provider designated by Experity to be used exclusively for the purpose of processing Client patient payments via credit card. Client shall be responsible for all processing fees charged by said e-merchant.
4. EXPERITY RESPONSIBILITIES.
   • 4.1. General. Experity will employ commercially reasonable efforts to ensure that the Experity Technology is free from viruses, worms, Trojan horses, spyware, adware, and other malicious code. Experity will not be responsible or liable for any failure to meet the foregoing responsibilities caused, in whole or in part, by the performance or adequacy of Client’s systems. Experity will provide technical support to Client in accordance with Experity’s then standard support policies, as may be amended from time to time by Experity.
   • 4.2. Communication with Users. As part of the provision of the Experity Technology and Services, Experity may need to communicate with Users from time to time. Client grants Experity the limited right to communicate with Users as may be necessary as part of the provision of the Experity Technology and Services, in Experity’s reasonable discretion.
   • 4.3. HIPAA. In compliance with HIPAA, Experity will collect, use, or receive protected health information in accordance with the business associate agreement (as amended or replaced from time to time, the “BAA”) attached hereto as an addendum and incorporated herein.
   • 4.4. Method of Delivering Client Software. Experity shall deliver Software (included as part of maintenance and support services) by electronic download or by such other means as determined appropriate by Experity for a particular software application.
   • 4.5. Availability of Records. Until the expiration of four (4) years after Experity ceases to furnish Software and Services hereunder, Experity agrees that the Secretary of the Department of Health and Human Services (“Secretary”) and the Comptroller General of the United States (“Comptroller General”), or the designee or duly authorized representative of either of them, may access any and all Experity books and records pertaining to the subject matter of this Agreement in accordance with the criteria presently or hereafter developed by the Department of Health and Human Services as provided in Section 952 of the Omnibus Reconciliation Act of 1980, 42 U.S.C. Section 1395x(v)(1)(A), et seq. (“ORB”). Upon request of the Secretary, the Comptroller General, or the designee or authorized representative of either of them, Experity will make available (at reasonable times and places during normal business hours) this Agreement and all Experity books, documents, and records that are necessary to verify the nature and extent of the costs of the Software and Services provided by Experity and furnished in connection with this Agreement. Experity further agrees that if Experity carries out any of the duties of this Agreement through a subcontract with a value or cost of Ten Thousand and 00/100 Dollars ($10,000.00) or more over a twelve (12) month period, with a related organization, such subcontract shall contain a clause to the effect that until the expiration of four (4) years after the furnishing of such software or Services pursuant to such subcontract, the related organization shall make available, upon written request by the Secretary or by the Comptroller General, or any of their designees or duly authorized representatives, the subcontract, and books and documents and records of such organization that are necessary to verify the nature and extent of such costs. Notwithstanding the foregoing, access to the books, records, and documents of Experity and any related organization provided for herein will no longer be required upon a finding by a court or quasi-judicial body of competent jurisdiction that this Agreement is outside the scope of the regulatory or statutory definition of those contracts and agreements included within the purview of Section 952 of ORB or the rules and regulations promulgated thereunder.
   • 4.6. OIG List. Experity represents, warrants, and covenants that during the Term of the Agreement, Experity, and each of its employees, contractors and/or agents providing Services hereunder has not been: (a) convicted of a criminal offense that falls within the ambit of 42 USC § 1320a-7(a) (i.e., any conviction relating to the Medicare or Medicaid program, patient abuse, felony conviction relating to healthcare fraud, or felony conviction relating to controlled substances); or (b) excluded, debarred, suspended, or otherwise ineligible to participate in the federal or state healthcare programs or in federal procurement or non-procurement programs. Without limiting the foregoing, Experity agrees to check, before hiring staff and every year thereafter, all of its all employees, contractors and/or agents whose salaries are directly or indirectly paid for by a federal healthcare program against the exclusion lists maintained by the following: (a) the U.S. Department of Health and Human Services Office of Inspector General; (b) the General Services Administration; and (c) each State’s Office of Medicaid Fraud where Client is located. Experity shall immediately notify Client in the event Experity or any of its employees, contractors or agents appear on one or more of these lists and Experity shall immediately remove such individuals from providing services hereunder. In the event that Experity or any of its employees, contractors and/or agents are subject to the actions set forth above, the Client may terminate this Agreement immediately. Notwithstanding anything herein to the contrary, in the event Experity, or one (1) of its employees, contractors, or agents appear on one (1) or more of the exclusion lists, Experity shall indemnify Client for any overpayment that is determined to be owed to the Medicare and/or Medicaid programs arising out of or related to such exclusion or Experity’s failure to so notify Client of such exclusion.
   • 4.7. Return of Client Data. Within thirty (30) days of the end of the Term, Client will notify Experity of which of the following post termination services the Client would like to receive: (a) copy of patient Private Health Information (“PHI”) for off-line electronic storage with PHI provided in TIFF or other format which has a publicly available viewer (of Experity’s choice) on compact disk or equivalent: $500 per clinic per year (or fraction of year) of operation; (b) copy of patient demographic information with accounts receivable balances, demographic and accounts receivable information provided in DBF or XLS (Experity choice) format on compact disk or equivalent: $200 per clinic per year (or fraction of year) of operation; and/or (c) ongoing long-term online storage and access of PHI: $250 per month per clinic. Within said thirty (30) day time frame, Client agrees to enter into a decommission agreement with Experity which shall identify Client’s selection for data delivery as well as any post termination services agreed upon by the Parties. In the event Client does not execute a decommission agreement, Experity shall deliver Client’s data for off-line storage and invoice Client for cost. For all Client Data utilized within the Clockwise.MD Technology, Client is responsible for notifying Experity if Client wants an export of said Client Data. Upon termination of this Agreement, Experity will delete all Client Data residing within the Clockwise.MD Technology within thirty (30) days of the end of the Term. If Client wants any additional data or the data in formats other than as indicated above, Experity will bill Client Three Hundred Fifty and 00/100 Dollars ($350.00) an hour to extract any additional data. Experity will provide Client with an estimate of the cost for the additional data or data formats before it extracts such additional data or provides it in a different format.
5. PAYMENT.
   • 5.1. Fees. Client will pay all fees specified in the applicable Service Order and/or Addendum in the manner set forth therein (collectively the “Fees”). All Fees are non-refundable. Experity shall invoice Client on a monthly basis for all Fees incurred. The amount specified on the invoice shall be paid to Experity by Client in the form of electronic payment (whether through ACH network or otherwise) seven (7) days following the invoice date.
   • 5.2. Invoices. Experity shall issue an invoice on or before the thirtieth (30th) day of each month. In the event Client is utilizing Experity’s revenue cycle management (“RCM”) services, said invoice shall fully reconcile all Fees incurred, remittance of collections, payments, and other debits and payments made on behalf of or to Client in the previous month.
   • 5.3. Price Increases. All Fees may be adjusted annually based upon the annual percentage change in the Producer Price Index for Final Demand – non-seasonally adjusted – in the most recent publication of the U.S. Bureau of Labor Statistics prior to the adjustment, plus three percent (3%). If the Producer Price Index for Final Demand is less than zero (0), a flat rate adjustment of three percent (3%) will be made for that year. The Fees may further be adjusted at any time, upon thirty (30) days written notice from Experity to Client, due to posted increases from third party vendors.
   • 5.4. Expenses. If Experity anticipates incurring any expenses to be reimbursed by Client, Experity will not incur such expenses unless such expenses are set forth in a Service Order Addendum agreed upon by both Client and Experity.
   • 5.5. Overdue Payments. Any payment not received from Client by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
   • 5.6. Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement or any Addendum hereto, Client will notify Experity in accordance with the notice provision set forth herein, within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to an invoice or due amounts is received by Experity within such thirty (30) day period, the invoice or amount due will be deemed correct and payable in full by Client.
   • 5.7. Taxes. Experity’s Fees do not include any local, state, federal, or foreign taxes, levies, or duties of any nature. Client is responsible for paying all such taxes, excluding only taxes based on Experity’s income. If Experity has the legal obligation to pay or collect taxes for which Client is responsible, the appropriate amount will be invoiced to and paid by Client to Experity unless Client provides Experity with a valid tax exemption certificate authorized by the appropriate taxing authority.
   • 5.8. Accurate Information. Client will maintain complete and accurate billing and contact information with Experity at all times.
6. CONFIDENTIALITY.
   • 6.1. Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information (defined below) or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
   • 6.2. Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use the Confidential Information only for the purposes described herein; (b) not to reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (c) except as required in performance of a Party’s obligations under this Agreement, it will not create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (e) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
   • 6.3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 shall not apply to Confidential Information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
7. IP OWNERSHIP.
   • 7.1. Experity Technology. Client acknowledges that Experity and its licensors own all right, title, and interest, including all Intellectual Property Rights, in and to the Experity Technology (excluding any Client Data contained therein) and all components thereof, and any other work product, developments, inventions, technology, or materials provided under this Agreement. Experity expressly reserves all rights not expressly granted to Client in this Agreement. Client shall not engage in any act or omission that would impair Experity’s and/or its licensors’ Intellectual Property Rights in the Experity Technology, and any other materials, information, processes or subject matter proprietary to Experity. Client further acknowledges that Experity retains the right to use the foregoing for any purpose in Experity’s sole discretion.
8. MUTUAL COMMITMENTS.
   • 8.1. Prohibition on Referral Inducements. The Parties acknowledge and agree that: (a) any Fees charged or amounts paid hereunder are not intended, nor will they be construed to be, an inducement or payment for referral of patients among Experity, Client, or any third party; and (b) they will not enter into any agreements, or otherwise make any payments, for the purpose of rewarding the referral of patients among Experity, Client, or any third party.
   • 8.2. Compliance Programs. The Parties will each separately maintain effective compliance programs consistent with the relevant compliance guidelines set forth by the Office of the Inspector General of the Department of Health and Human Services. The Parties will cooperate with each other to provide responses to any material inquiry or concern of either Party related to compliance with this Agreement or Applicable Law and to any reasonable request by either Party for clarification, documentation, or further information concerning Client billing or Client’s provision of, or referrals related to, health services for its patients.
9. LIMITED WARRANTY AND DISCLAIMER.
   • 9.1. Mutual Warranty. Each Party warrants that: (a) it will comply with all Applicable Laws, including HIPAA, in performing its obligations hereunder; and (b) neither it nor any of its personnel to its knowledge (i) has been convicted of any crime arising from claims or other transactions, financial relationships, or financial dealings in connection with healthcare or (ii) has been excluded from any federal or state healthcare program.
   • 9.2. Experity Warranties. Experity warrants that the Platform and Patient Engagement Solutions, when used in accordance with this Agreement and the Documentation, will operate substantially in conformance with the Documentation. However, because of the complexity of computer technology, Experity cannot and does not warrant that the operation of the Platform and Patient Engagement Solutions will be uninterrupted or error-free. If Client discovers a material deficiency in the Platform or Patient Engagement Solutions, then Client will submit to Experity a written report describing the deficiency in reasonable detail, and Experity will use reasonable efforts to remedy the deficiency. THE FOREGOING STATES EXPERITY’S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY IN THIS SECTION 8.2.
   • 9.3. Client Warranties. Client represents and warrants that Client’s provision of the Client Data and use of the Experity Services will comply with Applicable Law.
   • 9.4. State Law Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXPERITY MAKES NO REPRESENTATIONS AND OFFERS NO WARRANTIES THAT ITS PROVISION OF THE EXPERITY TECHNOLOGY OR CLIENT’S USE OF THE EXPERITY TECHNOLOGY OR ANY RECORDS OR FORMS IT GENERATES, COMPLY WITH ANY STATE OR FEDERAL LAWS OR REGULATIONS SPECIFICALLY APPLICABLE TO CLIENT, OTHER THAN THAT THE EXPERITY TECHNOLOGY CONTAINS SECURITY FEATURES THAT MEET THE REQUIREMENTS OF HIPAA.
   • 9.5. Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS MADE FOR CLIENT’S BENEFIT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPERITY TECHNOLOGY AND ALL SERVICES ARE PROVIDED “AS IS,” AND EXPERITY MAKES NO (AND DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE EXPERITY TECHNOLOGY (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CLIENT BY EXPERITY. EXPERITY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE EXPERITY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE.
   • 9.6. Internet Delays. THE PLATFORM AND PATIENT ENGAGEMENT SOLUTIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXPERITY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS OR ANY OTHER FORCE MAJEURE EVENT.
   • 9.7. Third Party Content. Certain tools and features of the Platform will make Third Party Content available to Client through the Platform. Because Experity does not control such Third Party Content, Client agrees that: (a) Experity is not responsible for any such Third Party Content; and (b) Experity does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and does not assume responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Third Party Content. Experity makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of Third Party Content or any products or services referenced thereby.
10. LIMITATION OF LIABILITY.
    • 10.1. Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE, OR GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH ITS PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR SOFTWARE, INCLUDING BUT NOT LIMITED TO THE EXPERITY TECHNOLOGY, ANY SUGGESTED MEDICAL CODING GENERATED THEREBY, AND ANY OTHER PRODUCTS OR SERVICES SUBJECT TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH OTHER PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL EXPERITY BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE SERVICES, SOFTWARE OR PRODUCTS. THE FOREGOING REPRESENTS AN EXPRESS ALLOCATION OF RISK BETWEEN THE PARTIES.
    • 10.2. Limitation of Damages. THE MAXIMUM LIABILITY OF EXPERITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE: (a) REIMBURSEMENT OF ACTUAL DAMAGES NOT TO EXCEED THE FEES PAID BY CLIENT TO EXPERITY UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; OR (b) REPAIR OR REPLACEMENT OF THE SOFTWARE IN ORDER THAT IT FUNCTIONS AS INTENDED, WHICHEVER IS LESS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE EXPERITY’S LIABILITY.
    • 10.3. Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 10 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and this Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
    • 10.4. Healthcare Provider Disclaimer. CLIENT ACKNOWLEDGES AND AGREES THAT DECISIONS REGARDING DIAGNOSIS AND APPROPRIATE COURSES OF TREATMENT, INCLUDING PROPER CODING THAT REFLECTS SUCH DIAGNOSIS AND TREATMENT FOR ANY GIVEN PATIENT AND DOCUMENTATION FOR TREATMENT ARE SOLELY THE RESPONSIBILITY OF CLIENT AND ITS PHYSICIANS AND OTHER HEALTHCARE PROVIDERS AND APPROPRIATE COURSES OF TREATMENT, CODING AND DOCUMENTATION FOR ANY GIVEN PATIENT ARE SOLELY THE RESPONSIBILITY OF CLIENT AND ITS PHYSICIANS AND OTHER HEALTHCARE PROVIDERS AND EXPERITY SHALL NOT BE RESPONSIBLE FOR (AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR) ANY DECISIONS MADE BY CLIENT OR ITS PHYSICIANS OR HEALTHCARE PROVIDERS BASED UPON THE PLATFORM DOCUMENTATION TEMPLATES, SUGGESTED CODING OR THE OUTPUT OR RESULTS GENERATED BY IT OR ANY ACTS OR OMISSIONS BY CLIENT, ITS USERS, OR BILLABLE PRACTITIONERS WHICH GIVE RISE TO ANY CLAIMS OF ANY NATURE BY ANY PATIENT OR THIRD PARTY.
    • 10.5. Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply.
11. INDEMNIFICATION.
    • 11.1. By Experity. Experity will hold harmless, indemnify, and defend Client from and against any losses, liabilities, costs (including reasonable attorneys’ fees), or damages to the extent arising from: (a) a third party claim alleging that the Experity Technology infringes the Intellectual Property Rights of a third party; or (b) if Client is utilizing Experity RCM services, arising from inaccurate information submitted by Experity on behalf of Client under circumstances where the data provided by Client or Client’s Agents to Experity was accurate, valid and complete. Notwithstanding the foregoing, Experity will have no obligation under this Section 11 with respect to any infringement claim based upon: (a) any unauthorized combination, use or modification of the Experity Technology; or (b) any Client Data (each, a “Client Responsibility”).
    • 11.2. By Client. Client will hold harmless, indemnify, and defend Experity from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages to the extent arising from a third party claim alleging: (a) any Client Responsibility; (b) the Client Data (except to the extent used by Experity in breach of this Agreement); (c) damages related to treatment provided by Client; (d) resulting from Client’s violation of federal or state laws or regulations, and against any claims submitted on behalf of and in the name of Client or Billable Practitioner (defined below) for which Client or Billable Practitioner has provided false, fraudulent, incomplete, misleading, or otherwise incorrect information or data, including, without limitation, the coding of any claims or failure to make patient refunds; or (e) Client’s breach of any representations and warranties in this Agreement or in any Addendum.
    • 11.3. Alternatives for Infringement. If any portion of the Experity Technology becomes, or in Experity’s opinion is likely to become, the subject of a claim of infringement, Experity may, at Experity’s option: (a) procure for Client the right to continue using the Experity Technology ordered by Client; (b) replace the Experity Technology with non-infringing Services which do not materially impair the functionality of the Experity Technology provided to Client; (c) modify the Experity Technology so that it becomes non-infringing; or (d) terminate the provision of the applicable Experity Technology, and upon such termination, Client will immediately cease all use of such Experity Technology.
    • 11.4. Indemnification Conditions. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the indemnified Party will notify the indemnifying Party in writing promptly upon learning of any claim or suit for which indemnification is sought; (b) the indemnifying Party will have control of the defense or settlement, provided that the indemnified Party will have the right to participate in such defense or settlement with counsel at its selection and at its sole expense; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party’s expense.
12. TERMINATION.
    • 12.1. Term. This Agreement will commence on the Effective Date and continue for the Term, unless terminated earlier pursuant to the terms of this Agreement.
    • 12.2. Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter has failed to cure the breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof. Notwithstanding the previous provision, in the event Client breaches this Agreement as a result of non-payment more than once in a twelve (12) month period, Experity shall be entitled to terminate this Agreement immediately upon the second or later occurrence of non-payment and the Client shall not be entitled to an additional cure period.
    • 12.3. Termination by Experity. In the event Client executes this Service Order prior to Client’s Facility being opened, and Client’s Facility has yet to open has not opened within one hundred eighty (180) days of the Effective Date, Experity may terminate this Agreement upon written notice to Client.
    • 12.4. Suspension. At any time during the Term, Experity may, immediately upon notice to Client, suspend access to the Platform if and as necessary to protect the Client Data in the event of a threat to the technical security or technical integrity of the Platform. Additionally, Experity will have the right, in addition to any of its other rights or remedies, to immediately suspend the provision of the Services or access to the Platform to Client, without liability to Client, if any amount due under this Agreement is not received by Experity within thirty (30) days when due. Experity will notify Client of any suspension under this Section 12.4 as soon as reasonably practicable.
    • 12.5. Consequences of Unauthorized Termination. Upon termination of this Agreement other than as permitted hereunder (“Unauthorized Termination”): (a) all provisions of Section 12.6 shall apply; (b) Client agrees to compensate Experity at a rate of Two Thousand and 00/100 Dollars ($2,000.00) per site per month for each month remaining in the current Term; and (c) Client agrees to compensate Experity an additional Four Thousand and 00/100 Dollars ($4,000.00) per site per month for each month remaining in the Current Term for termination of the RCM Services (fees owed pursuant to subpart (b) and (c) shall collectively be referred to as the “Early Termination Fees”). Client shall receive a final invoice, due and payable immediately to Experity, which shall include the combined total of current monthly Fees, past due balances if any, and beginning with the month of Unauthorized Termination the Early Termination Fees multiplied by the number of months, whether in part or in whole, remaining in the current Term.
    • 12.6. Effect of Termination. Termination will not relieve either Party of the obligation to pay any Fees accrued or payable to the other Party prior to the effective date of termination. Upon termination or expiration of this Agreement, as applicable: (a) Client will cease all use of the Experity Technology and the rights and licenses granted to Client to the Experity Technology, will immediately terminate (unless only RCM services are terminated); (b) Experity will provide Client with Client Data in accordance with Section 4.7 and any applicable Addendums hereto; (c) in the event Client terminates RCM services, the Fees for continued use of the Experity Technology shall increase by twenty percent (20%); and (d) all Fees will be immediately due and payable. Notwithstanding the termination of this Agreement, provisions which, by their nature are intended to survive termination will survive any termination of this Agreement.
13. REVENUE CYCLE MANAGEMENT SERVICES. Client authorizes Experity to prepare, process, and submit claims to commercial and government payers. Experity will perform such Services consistent with its internal operational and compliance activities and functions, and using its best efforts to obtain reimbursement for Client’s charges for clinical procedures and medical services provided to Client’s patients. All claims for medical services to commercial and government payers will be submitted by Experity in Client’s name and provider number assigned to Client by each respective commercial or government payer. As directed by the payer, claims will be submitted either electronically or by paper using the appropriate forms. No payment to or receivable of Client or any Billable Practitioner is assigned to Experity, and Experity is not the beneficiary of any such payment or receivable. Payment of all claims and any receivables (including, but not limited to, checks and electronic fund transfers) will be payable to Client or the Billable Practitioner and will remain the property of Client or the Billable Practitioner and will be directed to accounts to which Client or Billable Practitioner has control (as may be required by third party payers). Any lockbox or other account into which Client payments or receivables are deposited will remain in the name of, and under the sole ownership and control of, Client or Billable Practitioner and subject only to the instructions of Client or Billable Practitioner. Client acknowledges that Experity can only post payments if Experity has confirmation that payment was actually made by a payer and received by Client. The roles and responsibilities of Experity and Client are set forth on the Summary of Roles and Responsibilities attached hereto as Exhibit A.
    • 13.1. EXPERITY RESPONSIBILITIES RELATED TO RCM. On behalf of Client, Experity will provide the following services to Client (collectively, the “Services”):
      • 13.1.1. Process and submit Client’s claims to employers, patients, insurance companies, and other third party payers (each, a “Payer”).
      • 13.1.2. At Experity’s sole discretion, submit claims through electronic claims clearinghouse(s) of Experity’s choosing.
      • 13.1.3. When appropriate, make applications to applicable insurance carriers and/or clearinghouses so that Client’s claims may be filed electronically.
      • 13.1.4. Use reasonable efforts to process and transmit claims within three (3) business days of receipt of complete, error-free documentation necessary for billing such claims. Filing may be delayed by legal holidays.
      • 13.1.5. Maintain complete and accurate accounts receivable records for Client.
      • 13.1.6. Contact employers, patients, insurance companies, and other Payers for the purpose of gathering information required to submit claims and maintain patient accounts. During such contacts, Experity is hereby permitted to identify itself as the “billing office” or the “billing manager” of Client.
      • 13.1.7. Process at least one (1) past due notification for patient responsible balances.
      • 13.1.8. Advise Client of overdue status. At Client’s request, Experity will process those accounts for which collection procedures have been initiated by the collection agency of Client’s choosing (“Collection Accounts”).
      • 13.1.9. Notify Client of all accounts that are in collection status, and if requested by Client submit a summary report of those accounts on a quarterly basis.
      • 13.1.10. Use reasonable efforts to maintain compliance with federal, state, and private insurance carrier rules, regulations, and guidelines with respect to third party billing services.
      • 13.1.11. Forward to Client in a timely manner all requests for records received on behalf of Client. For avoidance of doubt, Experity will forward requests received by Experity for records but it will remain Client’s sole responsibility to determine what response, if any, should be provided in response to said request.
      • 13.1.12. Electronic Attachments. Experity shall enroll and register Client for electronic attachments with the vendor of Experity’s choosing. Experity shall search and load insurance companies into the Experity Technology, select which claims to send electronically and which attachments to add to each claim, and shall monitor claim submissions, clearinghouse errors and payer denials and shall be responsible for making changes accordingly.
    • 13.2. CLIENT RESPONSIBILITIES RELATED TO RCM.
      • 13.2.1. Provider of Services for Processing of all Claims. Client acknowledges and agrees Experity shall be the sole provider of Services to Client with all claims for services rendered by Client under Client’s tax identification number and facility or provider, as applicable, national provider identifier (“NPI”) processed solely by Experity and solely through the practice management software included within the Experity Technology.
      • 13.2.2. System Access. Experity will require full access to Client’s practice management Software and servers to facilitate claims submissions. Client authorizes Experity to have access to all patient accounts, post payments, and schedule payment arrangements within Client’s system or systems of third parties, such as insurance companies. With regard to payer online access, Client agrees to obtain administrator access for Experity. Client represents and warrants that it will, at its own expense, obtain sufficient rights and all third party consents and/or permissions that may be necessary and appropriate to permit Experity’s access to, and use of the Client Data in accordance with the terms herein and to contact patients on Client’s behalf.
      • 13.2.3. Reasonable Assistance. Client agrees to provide Experity with all necessary records, insurance contracts, information, and assistance for Experity to provide billing services and such assistance will be provided within one (1) business day of Experity’s request. Client’s failure to provide requested information within said timeframe may adversely impact Experity’s ability to provide RCM. Client is responsible for ensuring the accuracy and completeness of coding associated with claims and for ensuring the medical necessity, billing provider, supervising provider and rendering provider and appropriateness of healthcare services for which a claim or bill is submitted to a third party payer. Experity will have no liability or responsibility regarding the accuracy or completeness of the coding, provider documentation, determinations as to medical necessity and billing provider, supervising provider and rendering provider. Additionally, Client will provide all copies of explanations of benefits received from third party payers and records of payments received directly from patients within one (1) business day of receipt. Client further agrees it will cooperate with and respond to requests of Experity for additional information or documentation requested by Payers within one (1) business day of receipt. Client acknowledges that failure to comply or delay in providing such documentation or other information may result in claim denial, payment reduction, or forfeiture of payment or appeal rights.
      • 13.2.4. Maintain Professional Communications. Client shall ensure all communications with Experity are professional in nature and will prohibit all officers, employees or agents of Client from using abusive, offensive, or intolerant language.
      • 13.2.5. Electronic Payment/Checking Account. Within thirty (30) days of executing this Agreement, Client will enter into an e-merchant agreement with a merchant services provider designated by Experity to be used exclusively for the purpose of processing Client patient payments via credit card. Client shall be responsible for all equipment, implementation and processing fees related to merchant services received by Client. In the event Client fails to enter into said e-merchant agreement within the stated time frame, Experity shall be entitled to direct calls from patients who wish to make payment by credit card to the Client for processing until such time as the e-merchant agreement is in place and available for processing credit card payments. Within said thirty (30) day time frame Client shall also set up checking account(s) with Illinois Bank and Trust or such other lending institution designated by Experity to be utilized as depository accounts in accordance with Section 13.5 below.
      • 13.2.6. Online Bill Pay Account. At the request of Experity, Client will: (a) work with Experity support to set up a link on Client’s website for on-line payments; and (b) Pay Fees due to Experity for online bill pay services as specified in this Agreement.
      • 13.2.7. Client Responsible for Refunds. Experity will provide Client with a report of refunds owed to patients, and such amounts will be reflected in the accounts receivable balance. It is solely Client’s obligation to make any refunds to patients as required by Applicable Law or commercial or government payers.
      • 13.2.8. Remedy for Inaccurate Report or Claim. Experity shall re-submit, at Experity’s expense, any inaccurate reports or claims, provided that Client provides verification of inaccuracy of any such report or claim, and provided further that such inaccuracies were caused solely as a result of Experity’s performance. Client agrees that the foregoing constitutes its exclusive available remedy for an inaccurate report or claim being submitted by Experity.
      • 13.2.9. Fee Schedule/Charge Master. Client is solely responsible for determining its fee schedule/charge master and Experity does not have any responsibility or liability for the fee schedule/charge master set by Client.
      • 13.2.10. Payment Made Directly to Client. Client shall forward any payments from employers, patients or third party payers mailed directly to Client to Experity, along with all accompanying documentation, within twenty-four (24) hours. As to any payments made by patients directly to Client, Client shall log said payments into the Experity system at the time payment is presented.
      • 13.2.11. Excluded Providers. Client is solely responsible for ensuring no provider, employee, or vendor of Client is an Ineligible Person. Client represents and warrants that it will not submit patient visit documentation to Experity when the supervising, rendering or billing provider is an Ineligible Person. As used herein, “Ineligible Person” means an individual or entity who is excluded, debarred, suspended or otherwise ineligible to participate in the Medicare, Medicaid, TRICARE or other federal healthcare programs.
      • 13.2.12. RCM Acknowledgements, Representations and Warranties. Client represents and warrants that both its provision of the Client Data to Experity and the contemplated provision of RCM hereunder will in all cases comply with all Applicable Laws, including, without limitation, applicable federal, state, or private payer program requirements related to proper coding and current reimbursement principles. Client acknowledges and agrees that the ultimate responsibility for all claims submitted is that of Client or, as applicable, Billable Practitioner. Client acknowledges and agrees to be responsible for maintaining all original documents to verify and document the claims submitted to third party payers. Client acknowledges and agrees that it is ultimately responsible for all claims submitted and the submission of false, fraudulent, or misleading data, information, or statements to a government and/or commercial third party payer in connection with health insurance coding, billing, and claims submission is a liability subject to civil and criminal penalties and fines. Client further agrees that it will notify Experity if it or any of its providers is under investigation within one (1) business day of becoming aware of said investigation.
      • 13.2.13. Fee Adjustments due to Re-Billed Claims. Experity may keep a record of the number of claims that Experity is required to process to correct data provided by or inputted by Client or Client’s Agents or that Experity re-bills, and such re-billing is not due to an error on the part of Experity (“Re-Billed Claims”). When the total of such Re-Billed Claims exceeds five percent (5%) of the total claims process in the then current month, the rate paid to Experity by Client, as stated in this Service Order, shall be increased by one-half of one percent (0.5%) of Collections for that month; and for each additional five percent (5%) for which the Re-Billed Claims are a percentage of total claims for that current month, the rate for Fees shall be increased by an additional one-half of one percent (0.5%) of Collections for that month.
      • 13.2.14. No Guarantee of Collections. Collecting on medical claims is subject to numerous factors outside the control of Experity. Experity will use its best efforts to collect on claims for Client, but it does not guarantee that it will be able to successfully collect any amounts for Client.
      • 13.2.15. Adjudication of Claims. Experity will appeal and adjudicate claims with third party and government payers on Client’s behalf. In connection therewith, if Client has a debit balance with any third party or government payer, Client authorizes Experity to adjudicate any such debit balances, on Client’s behalf, other than balances uncollectable due to timely filing or follow-up limitation periods. To the extent that Experity has made multiple: (a) appeal attempts on a claim with a third party payer or government payer after such payer has received any necessary documentation; or (b) attempts to contact such third party or governmental payer electronically or by phone have been unsuccessful, Client authorizes Experity to determine such claims uncollectable and to apply an adjustment amount to offset Client’s accounts receivable.
    • 13.3. EXPERITY RESPONSIBILITIES RELATED TO CONTRACTING AND CREDENTIALING.
      • 13.3.1. Experity covenants that: (a) all personnel performing the contracting and credentialing services for Providers (defined below) with commercial and government payers (“C&C Services”) will be appropriately trained, qualified and, as applicable, certified and/or licensed in the functions to be performed; and (b) the C&C Services it provides hereunder will be of a professional quality conforming to generally accepted industry standards and practices. Experity does not provide legal advice and Client is responsible for consulting with its own legal counsel.
      • 13.3.2. 13.3.2. Experity makes no representations, guarantees, or warranties that it will be able to credential any Provider or that it will negotiate any fee schedule or contract terms that are acceptable to Client or that it is able to obtain the best fee schedule and terms for any payer. Experity is not responsible or liable for any losses, denials, or any other consequences for its C&C Services, including, without limitation, losses or denials as a result of delays in enrollment, payers not accepting any new Providers, or Providers seeing patients before being credentialed with a payer
    • 13.4. CLIENT RESPONSIBILITIES RELATED TO CONTRACTING AND CREDENTIALING. Client hereby requests and authorizes Experity to perform contracting and credentialing services for providers with commercial and government payers (“C&C Services”) as set forth in the Service Order and for the Fees set forth therein. Experity does not provide any credentialing for medical devices and Experity does not handle staff privileges for providers at hospitals. Experity does not do source verification, background, or licensing verification as part of the C&C Services. Experity is relying solely on the information provided by Client.
      • 13.4.1. Client will submit all providers on the roster to Experity for credentialing for the duration of Experity providing C&C Services. Client will exclusively use Experity for C&C Services and will not use any internal staff or a third party for contracting and credentialing services. For purposes of this Addendum, “Provider” refers to all physicians or physician extender (e.g., physician’s assistant or nurse practitioner) in Client’s clinic(s), including part-time, full-time, employed, contracted, or temporary.
      • 13.4.2. Client is responsible for identifying all payers for the C&C Services. Client is responsible for determining the Providers to be credentialed, including all physicians, physician assistants, and nurse practitioners. Client acknowledges that if Client elects not to credential a physician, nurse practitioner or other mid-level; Client may not be able to bill for the services provided by such mid-level to a patient. Once Client has accepted a contract with a payer, Experity will use commercially reasonable efforts to provide Client with a copy of such contract and it shall be Client’s responsibility to understand how any mid-levels may be billed under such contract.
      • 13.4.3. Client is responsible for assuring that all information and supporting documentation required for Provider enrollment is provided timely to Experity and CAQH, if Client is maintaining CAQH entries for its providers, accurately and completely. Client further agrees to cooperate with Experity with additional information or documentation that may be necessary for Provider enrollment during the enrollment process. Client is responsible for any changes in Provider information and must communicate such changes to Experity and CAQH, if applicable. Client is responsible for and will notify Experity of any demographic changes, changes in clinic Providers’ status, changes in scope of service hours, locations, and any other legal issues. Experity is not liable, and has no responsibility, for any Provider information given or failed to be given to Experity. Experity completes applications based upon the information provided by Client and Experity is not responsible for any inaccurate, erroneous, or incomplete information.
      • 13.4.4. Client acknowledges that each payer has its own requirements for Provider enrollment and timelines for processing such enrollment applications. The timing of Provider enrollment is not within the control of Experity and Experity is not responsible for delays in enrollment caused by Client or any healthcare plan, commercial payer, or government payer.
      • 13.4.5. Client is responsible for reviewing the contract and all contract terms. Client must approve of all fee schedules and payer contracts, with such approval permitted to be by e-mail or through a software application.
      • 13.4.6. Client authorizes Experity to contact insurance companies and other payers in connection with the C&C Services, which contact may include gathering information required in order to obtain a contract with a payer. Client understands that each payer has the right to deny Client into its network. Experity has no liability or responsibility for payer’s decision to deny inclusion.
      • 13.4.7. Client acknowledges and agrees that it is solely responsible for ensuring no Provider, employee, or vendor of Client is an Ineligible Person. Client represents and warrants that it will not submit documentation to Experity for C&C Services when the supervising, rendering, or billing Provider is an Ineligible Person.
    • 13.5. APPOINTMENT OF EXPERITY AS CLIENT’S ATTORNEY-IN-FACT. In connection with the Services to be provided hereunder, and throughout the Term, Client hereby grants to Experity an exclusive special power of attorney and appoints Experity as Client’s true and lawful agent and attorney-in-fact, and Experity hereby accepts such special power of attorney and appointment, solely for the following purposes:
      • 13.5.1. To bill Client’s patients, in Client’s name and on Client’s behalf, for all claims for payment for all billable goods sold and medical services provided or arranged by Client or Client’s Agents to patients, unless such billing would cause Client to be in violation of the Stark Act, any state referral ban, or any other applicable federal, state, or local law or regulation.
      • 13.5.2. To bill insurance companies, Medicare, Medicaid, and all other third party payers or fiscal intermediaries in Client’s name and on Client’s behalf, all claims for payment, reimbursement, or indemnification for all billable goods sold and medical services provided or arranged by Client or Client’s Agents to patients, unless such billing would cause Client to be in violation of the Stark Act, any state referral ban or any other applicable federal, state, or local law or regulation.
      • 13.5.3. 13.5.3. Subject to Section 13.5.4 below, to collect and receive, in Client’s name and on Client’s behalf, all accounts receivable generated by such medical claims processing services, and to administer such accounts at its reasonable discretion on Client’s behalf, which administration shall include, without limitation:
        • 13.5.3.1. extending the time of payment of any such accounts for cash, credit, or otherwise;
        • 13.5.3.2. with Client’s consent, discharging or releasing the obligors of any such accounts; and
        • 13.5.3.3. with Client’s consent, taking other measures to require the payment of any such accounts.
      • 13.5.4. To deposit all amounts collected, other than government program receivables, into a depository account which shall be in the name of Experity, but in which Experity will account for such funds on a separate and distinct basis from any other funds deposited into such account by other providers for which Experity provides billing services (“Non-Government Payer Depository Account”). To deposit all amounts collected solely from government program receivables, into a depository account which shall be in the name of Client with access given to Experity for the duration of the Term, in which Experity will account for such funds on a separate and distinct basis from any other funds deposited by other providers for which Experity provides billing services (“Government Payer Depository Account”). The Non-Government Payer Account and Government Payer Depository Account shall collectively be referred to herein as the “Depository Accounts”. The Parties acknowledge and agree that in performing such Services for Client, Experity is acting as Client’s Agent pursuant to the power of attorney set forth in this Section 13.5, and except as expressly provided herein, all rights to such funds shall remain with Client.
      • 13.5.5. To take possession of, and endorse in the name of Client, solely for deposit into the Depository Accounts, any notes, checks, money orders, insurance payments, and other instruments received as payment for medical services provided to clinic patients and to take possession of, and endorse in the name of Client solely for the deposit into Client’s account, any notes, checks, money orders, insurance payments, and other instruments received from non-governmental payers as payment for medical services provided to clinic patients.
14. REMITTANCE OF COLLECTIONS TO CLIENT. Based upon Collections received from the previous Friday through Thursday of the current week and deposited into the Depository Accounts on behalf of Client, Experity shall remit the Net Collections (defined as Collections minus refunds paid on behalf of Client, if any, minus any not sufficient fund on payments processed, and minus all estimated Fees due Experity) to Client on Friday of the current week by means of an electronic funds transfer (whether by means of the Automated Clearing House (“ACH”) network or by such other electronic method as Experity may from time to time determine) to an account designated by Client. Transfers made through ACH are deposited into Client’s account on the succeeding banking business day. Client will submit documentation to Experity to allow Experity to make electronic funds transfers into an account designated by Client.
15. DISPUTES REGARDING RCM ISSUES. It is the intent of the Parties that all issues relating to RCM be resolved expeditiously, amicably, and at the level within each Party’s organization that is most knowledgeable about the disruption. If Client has any issues or concerns regarding RCM, Client will notify Experity in writing, in accordance with the notice provision set forth herein, no later than ten (10) business days of encountering said issues to enable proper resolution of such issues. Experity will use reasonable efforts to resolve any such RCM issues within ninety (90) days of receiving notice thereof. If Experity is unable to resolve such disputes within such ninety (90) day time period, then Client may terminate RCM Services only, without incurring any early termination fees provided, however, that Client will remain obligated to Experity for payments received by Client for RCM provided by Experity prior to the date of termination. For avoidance of doubt, Client’s failure to give notice of an RCM performance issue within the ten (10) day period shall result in Client’s waiver of the right to raise said issue.
16. GENERAL.
    • 16.1. Entire Agreement. This Agreement, together with the exhibits and each Addendum attached hereto are the final, complete, and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters.
    • 16.2. Governing Law and Venue. Unless otherwise required by law, this Agreement and any action related thereto will be governed and interpreted by and under the laws of Illinois, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Each Party agrees that any and all causes of action between the Parties arising from or in relation to this Agreement will be brought exclusively in the state and federal courts located in the City of Rockford, State of Illinois.
    • 16.3. Publicity. Experity may publicly refer to Client, including on Experity’s website and in sales presentations, as an Experity customer and may use Client’s logo for such purposes. Similarly, Client may publicly refer to itself as a customer of Experity. Each Party grants the other a limited, worldwide license to use the other’s logo in conformance with such Party’s trademark usage guidelines and solely for the purposes of fulfilling its obligations hereunder and as set forth in this Section 16.3. Experity may also issue a press release announcing the relationship with Client.
    • 16.4. Export. Client agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Experity, or any products utilizing such data, in violation of the United States export laws or regulations.
    • 16.5. Local Laws. Experity and its suppliers make no representation that the Experity Technology is appropriate or available for use in locations other than the United States. If Client uses the Experity Technology from outside the United States, Client is solely responsible for compliance with all Applicable Laws, including without limitation export and import regulations of other countries. Any diversion of the Data contrary to United States law is prohibited. Client will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Experity Technology hereunder.
    • 16.6. S. Government End-Users. Each of the components that constitute the Experity Technology is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Experity Technology with only those rights set forth herein.
    • 16.7. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    • 16.8. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. For avoidance of doubt, a Party’s failure to enforce a provision of this Agreement shall not be deemed a waiver of that provision unless said waiver has been reduced to writing and signed by the Party deemed to have waived said provision.
    • 16.9. Remedies. The Parties acknowledge that any actual or threatened breach of Section 2.1 (Grant of Rights) or Section 6 (Confidentiality) will constitute immediate, irreparable harm to the non-breaching Party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing Party, will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive, from the other Party.
    • 16.10. Assignment. Client may assign this Agreement, with prior written consent from Experity, provided the assignee agrees to be bound by the terms of the Agreement. Notwithstanding Experity’s consent, Client will remain primarily liable for all obligations. Experity may, without Client’s consent, assign this Agreement to any of its successors, affiliates, subsidiaries, and in connection with the sale of a majority of the equity ownership or assets of Experity. This Agreement will be binding upon the Parties and their respective successors and permitted assigns.
    • 16.11. Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
    • 16.12. Notices. Any notices, communications and waivers under the Agreement shall be in writing and shall be (a) delivered in person, (b) mailed, postage prepaid, either by registered or certified mail, return receipt requested, or (c) sent by overnight express carrier, addressed in each case as follows:
    • To Experity: Experity, Inc., 8777 Velocity Drive, Machesney Park, IL 61115 Attn: Chief Executive Officer,

      With a copy to: Experity, Inc., 8777 Velocity Drive, Machesney Park, IL 61115 Attn: General Counsel.

      To Client: Client contact name and address set forth in the Service Order.  For avoidance of doubt, email shall not be an acceptable form of notice under the Agreement.

    • 16.13. Electronic Signatures. The Parties agree that if this Agreement is transmitted electronically, neither Party shall contest its validity, or any acknowledgment thereof, on the basis that this Agreement or acknowledgment contains an electronic signature.

14. DEFINITIONS. Capitalized terms will have the meanings set forth in this section or in the section where they are first used.
• 14.1. “Addendum” means an addendum attached to a Service Order with supplemental terms governing the additional Services provided to Client.
• 14.2. “Applicable Law” means all applicable federal, state, and local laws and regulations, including, without limitation, the Health Insurance Portability and Accountability Act of 1996, and associated regulations, as they may be amended from time to time (“HIPAA”) and those relating to kickbacks, fraud and abuse, confidentiality, Medicaid, or Medicare (subject to Section 9.4 (State Law Disclaimer) of the Agreement for Experity).
• 14.3. “Billable Practitioner” means a physician or licensed or specially trained non-physician who is credentialed with payers, linked to Client’s organization, and performs health services for Client’s customers.
• 14.4. “Calibrater Health Technology” means the web services provided by Experity for reputation management, issue tracking, patient surveys, team scorecards/engagement, performance insights and related features developed in connection therewith, including, all Intellectual Property Rights associated therewith.
• 14.5. “Client Data” means any information, data, or materials provided by or on behalf of Client to or through the Experity Technology, including protected health information (“PHI”) (as defined under HIPAA) of Client’s patients. Any information provided by a patient through a patient-facing portal will also be considered Client Data.
• 14.6. “Clockwise.MD Technology” means the technology, Software and Services provided by Experity for surveys and queues and related features developed in connection therewith, including all Intellectual Property Rights associated therewith.
• 14.7. “Confidential Information” means any non-public material or information relating to a Party which it discloses or makes available to the other Party under the Agreement that is designated as confidential or that ought reasonably be considered to be confidential, unless otherwise set forth herein.
• 14.8. “Documentation” means all standard documentation, user manuals, and other technical materials relating to the Experity Technology and Patient Engagement Solutions that are provided by Experity to Client in accordance with the terms of this Agreement, as the foregoing may be updated from time to time by Experity. The Documentation may include minimum user requirements for Client’s systems to use the Experity Technology.
• 14.9. “Encounter” means any patient visit by a Billable Practitioner.
• 14.10. “Experity Technology” means: (a) the Platform, Documentation, and all other proprietary intellectual property (including, without limitation, audio and visual data and information), documents, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information used or provided by Experity in connection with the Platform or Services; (b) all software, technology, or other works developed or created by or for Client with respect to its use of the Platform or Services; and (c) any modifications, improvements to, or derivative works of, any of the foregoing.
• 14.11. “Facility” means the clinic facility or facilities identified on a Service Order as well as any subsequent facilities identified by Client.
• 14.12. “Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
• 14.13. “Patient Engagement Solutions” means collectively the Clockwise.MD Technology and the Calibrater Health Technology licensed by Experity, and all Documentation and all derivatives of any of the foregoing by any person, including, without limitation any modifications, revisions, and updates provided by Experity.
• 14.14. “Platform” means Experity’s proprietary hosted practice management and electronic medical record storage system software owned by Experity or its subsidiaries made available by Experity to Client to access through the Internet and/or to download to Client’s computers under this Agreement.
• 14.15. “Service Order” means the form evidencing the Initial Term for the use of the Experity Technology and any subsequent order forms submitted online or in written form and specifying, among other things, other billing services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the Parties. A Service Order may have an associated Addendum which will set forth any supplemental terms for Services.
• 14.16. “Services” means professional services (e.g., integration, implementation, design, assessments, and training), support, maintenance and other Client services provided by Experity to Client under a Service Order or Addendum.
• 14.18. “Third Party Content” means text, graphs, tables, images, and other forms of content that is licensed by Experity from a third party and made available or displayed by Experity through certain features of the Platform.
• 14.19. “Users” means Client’s employees, consultants, and representatives who are authorized to utilize the Experity Technology and who are provided with access to the Experity Technology by virtue of a password or the equivalent thereof.

AMA ADDENDUM

Experity licenses from the American Medical Association (“AMA”) certain editorial content (“AMA Editorial Content”), which may include content from the print publication Current Procedural Terminology, Fourth Edition (“CPT Book”) and the data file(s) of Current Procedural Terminology (“CPT®”) including CPT® Standard and CPT® Link (formerly known as Developer’s Toolkit), all as available from the AMA (individually and collectively called “CPT Data File”) published by the AMA in the English language as used in the United States (collectively, “CPT” or “CPT Editorial Content”), a coding work of nomenclature and codes for reporting of healthcare services, together with: (a) content from the print publication CPT® Assistant, a newsletter published by the AMA in the English language as used in the United States; (b) content from the print publication CPT® Changes, a book published by the AMA in the English language as used in the United States; (c) content from the data file published by the AMA of the International Classification of Diseases 10th Revision Clinical Modification and Procedure Coding System (“AMA’s Version of ICD-10-CM/PCS”); (d) content from the data file published by the AMA of the Healthcare Common Procedure Coding System Level II (“AMA’s Version of HCPCS”); or (e) CPT® to SNOMED CT® and SNOMED CT® to CPT® Maps (“SNOMED CT® Maps”) as contained in CPT® Link. For purposes of this Addendum, the term “Electronic Licensed AMA Product” means the following electronic licensed product (including uses via the internet and e-Books):

CPT® Editorial Content
CPT® Assistant
CPT® Changes
AMA’s Version of HCPCS
AMA’s Version of ICD-10-CM/PCS

Pursuant to the terms of Experity’s license Agreement with the AMA requires that as a condition to licensing the AMA Editorial Content to Client, Experity must include certain end user license agreement terms as set forth in this Addendum.

1. GRANT OF RIGHTS, RESTRICTIONS AND OBLIGATIONS.
• 1.1. Experity hereby licenses the AMA Editorial Content to Client on a nontransferable, nonexclusive license for the sole purpose of internal use by end user within the United States.
• 1.2. Client is prohibited from publishing, distributing via the Internet, or other public computer-based information system, creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party the Electronic Licensed AMA Product(s), or a copy or portion of Electronic Licensed AMA Product(s).
• 1.3. The license of the AMA Editorial Content in the Electronic Licensed AMA Product(s) is dependent on continuing contractual relationship between Experity and the AMA.
• 1.4. Client agrees that anyone with authorized access to the Electronic Licensed AMA Product(s) will comply with the provisions of this Addendum.
• 1.5. For purposes of this Addendum, “Users” are defined as follows:
•  an individual who:
•  (a) accesses, uses, or manipulates CPT Editorial Content and/or AMA’s version of ICD-10-CM/PCS and/or AMA’s version of HCPCS, as applicable, contained in the Electronic Licensed AMA Product; or
•  (b) accesses, uses, or manipulates the Electronic Licensed AMA Product to produce or enable an output (data, reports, or the like) that could not have been created without the CPT Editorial Content and/or AMA’s version of ICD-10-CM/PCS and/or AMA’s version of HCPCS, as applicable, embedded in the Electronic Licensed AMA Product(s) even though CPT Editorial Content and/or AMA’s version of ICD-10-CM/PCS and/or AMA’s version of HCPCS, as applicable, may not be visible or directly accessible; or
•  (c) makes use of an output of the Electronic Licensed AMA Product that relies on or could not have been created without the CPT Editorial Content and/or AMA’s version of ICD-10-CM/PCS and/or AMA’s version of HCPCS, as applicable embedded in the Electronic Licensed AMA Product even though CPT Editorial Content and/or AMA’s version of ICD-10-CM/PCS and/or AMA’s version of HCPCS, as applicable, may not be visible or directly accessible.
•  Client will work with Experity to accurately calculate Users in accordance with the requirements of Experity’s license agreement with the AMA.
• 1.6. For purposes of this Addendum, Users of CPT® Assistant and/or CPT® Changes are defined as follows:
• “User” means an individual who accesses or has access to CPT® Assistant Editorial Content and/or CPT® Changes Editorial Content, as applicable, contained in the Electronic Licensed AMA Product.
• Client will accurately count Users as defined above for CPT® Assistant and/or CPT® Changes, as contained in each Electronic Licensed AMA Product, as applicable. Upon request, Client will report to Experity the accurately counted number of Users of CPT® Assistant and/or CPT® Changes, as contained in each Electronic Licensed AMA Product as applicable.

2. NOTICES.
• 2.1. Client acknowledges that CPT is copyrighted by the AMA and that CPT is a registered trademark of the AMA.
• 2.2. Client acknowledges that the term of the license agreement between Experity and the AMA contains the following:
  U.S. Government Rights
• 2.3. This product includes CPT which is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. The AMA does not agree to license CPT to the Federal Government based on the license in FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items) or any other license provision. The AMA reserves all rights to approve any license with any federal agency.
3. BACKUP RIGHTS.
• 3.1. Client may only make copies of the Electronic Licensed AMA Product(s) for backup or archival purposes.
• 3.2. All notices of proprietary rights, including trademark and copyright notices, must appear on all permitted backup or archival copies made.
4. MISCELLANEOUS.
• 4.1. The AMA Editorial Content as contained in the Electronic Licensed AMA Products is provided “as is” without any liability to the AMA, including without limitation, no liability for consequential or special damages, or lost profits for sequence, accuracy, or completeness of data, or that it will meet the Client’s requirements, and that the AMA’s sole responsibility is to make available to Experity replacement copies of the AMA Editorial Content if the data is not intact; and that the AMA disclaims any liability for any consequences due to use, misuse, or interpretation of information contained or not contained in AMA Editorial Content.
• 4.2. This Addendum will terminate upon termination of the Agreement.
• 4.3. The consideration for the license contained herein is included within the pricing set forth in the initial Service Order or an additional Service Order Addendum, as the case may be.
• 4.4. In the event any provision of this Addendum is deemed to violate any law or is unenforceable the remainder of this Addendum will remain in full force and effect.
• 4.5. The AMA is a third party beneficiary of this Addendum.
• 4.6. Client acknowledges that Experity has the right to provide the AMA with Client’s name in connection with Experity’s reporting requirements under the license agreement between Experity and the AMA.