Master Services Agreement

Dear Client,

We’ve provided the following background information to help with your review of our agreements.

There are two key legal documents that govern the sale of RLDatix’s software and services:

• The Order specifies what products and services are being purchased and defines the scope of software licensing.
• The Master Services Agreement (“MSA”) is our contract governing software licensing, service delivery, and support and maintenance. RLDatix’s software is licensed per user or on an enterprise basis and may be limited based on your size as an organization (measured in FTEs) and/or to specific client locations, as indicated on the Order.

To put the documents in context, here are some items of note:

• Our software isn’t used in the delivery of patient care, nor is it mission critical. As a result, we assume a lower legal risk and in turn can provide the software at a lower price.
• RLDatix provides commercial off-the-shelf software and doesn’t do custom development.
• We see price and terms as being linked. We want to make it easy for our clients to purchase from us, so we often provide a discount for accepting our standard terms as is. Most of our clients accept this offer because it makes for a simpler purchase process and a lower price.
• We are willing to consider modest edits to our agreement, however it may result in a different price and slow down the purchase process. We don’t make inline changes to our MSA because we’ve noticed that it tends to blur the line between important issues and immaterial or stylistic changes. If you wish to make changes, please propose alternate legal language in the MSA Addendum document provided by your sales representative. Limited changes from standard language can also be effected in the Order Addendum, which through order of precedence {12.1} takes priority over the MSA.

With respect to the MSA, here are a few specifics worth knowing:

• The Incompatibility with Law provision {12.4} is intended to eliminate the need for contract edits dealing with unique jurisdictional laws. (This approach avoids RLDatix having to consult with experts in each jurisdiction to validate edit requests.)
• The Standard Support Plan Schedule {3.11} is not editable. With thousands of hospitals as clients it would be impractical to have different service levels and guides for each client.
• Our software includes third party components. In every case, RLDatix is permitted to provide this third-party software to you (and you are permitted to use it), at no additional charge. Some of the publishers of those software elements require that we provide you with a copy of their license agreement.  None of the terms of those agreements diminish the rights RLDatix is otherwise offering to you in the agreement. We refer to these as “Third Party Software License Agreements”, and for your reference we provide a complete set of them, constantly updated, via our web site and for download. The Third-Party Software Licensing Agreements are not editable.
• You own all rights to your data {6.2}. Although RLDatix retains ownership and full title in all intellectual property associated with the software, you own your data.
• Minimum Commitment {2.12} is only applicable if the Order lists one. Otherwise, you can stop paying your annual fee at the end of the current term. With a perpetual license, you can continue to use the software without paying an annual fee (although this is not recommended). You do not need to terminate the agreement in order to stop paying annual fees. Terminating the agreement terminates the license and your right to use the software.
• The Hosting Addendum is only applicable if RLDatix is providing hosting or cloud services.
• The MSA is a boilerplate document designed to handle different situations (e.g. Perpetual and Subscription licensing; Minimum Commitment or no Minimum Commitment). The Order dictates the details of what applies or doesn’t apply in your specific situation. Editing out clauses which don’t apply with this purchase is unnecessary and can hamper future purchases.
  We thank you for selecting RLDatix as your technology partner to support quality improvement in your healthcare organization. Our goal is to be balanced and fair throughout that process of reviewing the purchase agreement and, at any time, if you have questions or items of clarification, please feel free to give us a call.

We thank you for selecting RLDatix as your technology partner to support quality improvement in your healthcare organization. Our goal is to be balanced and fair throughout that process of reviewing the purchase agreement and, at any time, if you have questions or items of clarification, please feel free to give us a call.

Sincerely,

John Osment

VP Commercial Operations, RLDatix

RLDATIX MASTER SERVICES AGREEMENT

Client (as defined on the Order) and RLDatix (each individually is a “Party” and together they are the “Parties”) hereby agree as follows:

1. SCOPE
   1. The terms and conditions of this agreement (the “Agreement”) and any attached schedule apply to Client’s use of the RLDatix’s products or services ordered by Client under an order form, statement of work, or other ordering document issued by RLDatix specifying the services to be provided hereunder (each an “Order” and collectively, the “Orders”).  The parties acknowledge that in entering into this Agreement they have not relied upon any representations other than those reduced to writing in this Agreement.
   2. Purchase Order (“PO”) Requirements: Client expressly agrees that terms and conditions provided under any PO provided to RLDatix shall be of no force and effect and shall be excluded from any Agreement. Client will provide any required POs promptly on signing of the Order.  This Agreement also applies to any services or work RLDatix does for Client without any other written agreement.
2. Definitions
   1. “Affiliates” means affiliated in the manner indicated in the Order.
   2. “Authorized Users” shall consist of the individuals Client permits to either access or use the Licensed Materials and is a subset of the individuals included in Client’s FTE number as indicated on the Order. Authorized Users must be associated with either a Listed Licensed Location or an Unlisted Licensed Location.
   3. “Confidential Information” means all confidential information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, and includes this Agreement and all Orders as well as business and marketing plans, technology and technical information, product plans and designs and business processes disclosed by such Party. Notwithstanding the foregoing, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party, as demonstrated by Receiving Party’s written records.  Where the Disclosing Party is the Client, Confidential Information shall not include any information provided by Client through public forums or de-identified or aggregated data.
   4. “Client Data” means all non-aggregated or non-deidentified electronic data or information submitted by Client to be stored or processed in the Licensed Materials.
   5. “Documentation” means the published user manuals and other written materials concerning the Licensed Materials that RLDatix generally makes available to its clients from time to time.
   6. “Enhancements” means any updates, upgrades, improvements or new versions of the Software or Documentation that RLDatix may release or make generally available to its clients from time to time, which items are also subject to license.
   7. “FTE” means full time equivalents.  FTEs are expressed in numerical units, with full time workers expressed as 1.0 FTE and half-time workers expressed as 0.5 FTE. As used in connection with this Agreement, Client’s FTEs include: (i) all of Client’s employees, (ii) Client’s agents and affiliates, (iii) Permitted Independent IT Contractors, (iv) independent or contract medical personnel (physicians, nurses, pharmacists, etc.) including their support and ancillary staff, and (v) any other groups of health care providers, medical workers and volunteers having privileges or working with Client. Client’s FTEs are deemed to exclude: (A) FTEs associated with Non-Licensed Locations as recorded on the Order (only to the extent that there is no overlap with Listed Licensed Locations or Unlisted Licensed Locations), and (B) Client’s patients and customers (to the extent that they do not fall into one of the other groups of individuals listed in the preceding sentence).
   8. “IP Claim” means any claim, suit or proceeding filed against Client by any third party to the extent that such claim, suit or proceeding asserts that the Licensed Materials infringe any intellectual property rights of such third party in Canada, the United States, the United Kingdom, Australia or the EU.
   9. “Licensed Materials” means (i) the Software, (ii) the Documentation, (iii) any Enhancements; (iv) any Modifications; (v) any Professional Services and (vi) any copy of the Software, Documentation, Enhancements or Modifications and Third Party Software.
   10. “Licensed Thresholds” refers to the limitations on use specified on the Order such as, without limitation, the following: license type (i.e. the functionality included in the license to Client); number of licensed users (meaning the absolute number of permitted users of the Software rather than the FTE count); number of different types of users; Listed Licensed Locations and Unlisted Licensed Locations; and the FTE limit. 
   11. “Listed Licensed Locations”, “Unlisted Licensed Locations” and “Non-Licensed Locations” are as indicated on the Order: Listed Licensed Locations being specified by name and address. All authorized locations must be listed and may be excluded from the list only in accordance with terms for locations on the Order.
   12. “Minimum Commitment” means a minimum term of Maintenance and/or a subscription as specified on the Order.
   13. “Modifications” means any alteration, change or modification to any Licensed Materials made at Client’s request.
   14.  “Order” refers to the order form or quotation provided by RLDatix to Client that specifies the fees and certain parameters for the Licensed Materials, such as, without limitation, License Thresholds.
   15. “Permitted Independent IT Contractor” means an individual or group of individuals not employed by Client but who are engaged in work that supports Client’s use of the Licensed Materials. To qualify as Permitted Independent IT Contractors, such individuals or group of individuals must be identified on the Order, must be included in the FTE count, and must not provide services to, or on behalf of, any business which is competitive with RLDatix.
   16. “Software” means the RLDatix-owned computer programs identified on the Order, together with any Enhancements or Modifications.
   17. “Support Guide” means the RLDatix Standard Support Plan, the most current copy of which is always available at https://rldatix.com/en-nam/company/terms.
   18. “Third Party Software” means any computer programs not owned by RLDatix that are licensed to Client and provided along with the Licensed Materials.
   19. “Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.
3. LICENSED MATERIALS
   1. Right to Use Licensed Materials: License Grant. RLDatix hereby grants to Client a non‑transferable, non-exclusive perpetual or subscription license (as so identified on the Order) (“Perpetual License” or “Subscription License”, respectively) for its Authorized Users to (i) under a Perpetual License, install and use the Licensed Materials in accordance with this Agreement, or (ii) under a Subscription License, to remotely access and use the Licensed Material, in each case, subject to the License Threshold limitations set forth in this Agreement and the associated Order (including the duration of any Subscription License or renewal thereof) up to the FTE threshold for which the Fee has been paid, solely at the Listed Licensed Location(s) and Unlisted Licensed Locations as specified and defined on the Order (as modified by the process in section 3.4), and provided always that the FTE and live database limits specified and defined on the Order are not exceeded (the "License").  Client shall ensure that the Licensed Materials are not used at Non-Licensed Locations.
   2. Limitations.  Any right not specifically granted herein is reserved.  Client shall have no right to assign, sublicense, transfer, rent, lease, or distribute the Licensed Materials.  No right of ownership or any other exclusive right in any particular manner of configuration, customization or setup of the Licensed Materials performed by RLDatix is granted to Client.  No right is granted to the Client to use the Licensed Materials other than in support of Client’s own internal business processes and activities.  No right is granted to the Client herein to operate the Licensed Materials in a service bureau, outsourcing business or other manner in which the Licensed Materials are used to process or manage information other than that generated by Client in the course of Client’s own internal operations.  Subject to this section, Client specifically agrees to refrain from any direct or indirect efforts or attempts to reverse engineer, decompile, or disassemble the Licensed Materials or to develop any derivative work thereof of any kind. Client shall not remove or obscure any proprietary notices or labels on the Licensed Materials or infect the Licensed Materials with viruses or any other computer code, files or programs that interrupt, destroy, or limit their functionality.  Client shall permit only Authorized Users to access the Licensed Materials and only for the exclusive purpose of operating the Licensed Materials in the course of Client’s business.  Client shall ensure that each Authorized User has, and only uses his or her own, unique account name and password combination to access the Software.  Client shall not permit more than one person to use any one account name and password combination. Client shall not permit any person or entity other than RLDatix to maintain or in any way change or modify the Licensed Materials or any element thereof.  If Client has elected for a Subscription License, Client’s right to the use of the Licensed Materials is limited to the duration of the Subscription License (or any renewal thereof) for which the Subscription License fee has been paid. 
   3. Warranty.  RLDatix warrants that it has the right to (i) enter into this Agreement; (ii) grant the licenses offered pursuant this Agreement; and (iii) grant the right for Client and its Authorized Users to make use of the Third-Party Software. 
   4. Limited Warranty. RLDatix warrants that the Software and any Enhancements will, for a period of six (6) months from the Effective Date, perform materially as described in the then-current Documentation. No warranty or assurance is made as to the ability of the Software to satisfy any or all of Client’s particular requirements or that use of the Software will be uninterrupted or error free. The Limited Warranties shall not apply to the extent that (i) Client does not report a nonconformity or defective element of the Software within the Limited Warranty period set forth above, (ii) the Software is not used in accordance with the then-current Documentation, (iii) Client makes any changes to the underlying Software that have not been approved in writing by RLDatix, and/or (iv) the nonconformity is due to the misuse of the Software. In the event of written notice of a breach of the Limited Warranty set forth in section 3.4, RLDatix or its representative will undertake all commercially reasonable efforts to correct the nonconformity or repair or replace any defective element of the Licensed Materials.  If the breach cannot be so cured, RLDatix will (i) accept the return of the Licensed Materials, (ii) terminate the license granted herein, and (iii) refund the Initial Fees and First Year fees paid by Client as of the date such written notice was provided to RLDatix.  The foregoing sentence represents Client’s sole and exclusive remedy for any breach of the Limited Warranties, or any duty or obligation related to the operation or quality of the Licensed Materials.
   5. Authorized Users.  Only Authorized Users are entitled to make use of and access the Licensed Materials, and only then (i) from Listed Licensed Locations and/or Unlisted Licensed Locations as specified and defined on the Order, using a secure connection to the server hosting the Software for Client and (ii) exclusively to operate the Software for Client’s internal business. As such, Client will ensure that only Authorized Users have access to the Licensed Materials.
   6. Location Substitution and FTE Limit.  Client may substitute one permitted location for another Listed License Location, provided that (i) the new location replaces either an original location on the initial Order or a location subsequently added via this process, (ii) the new location is in the same country as the location it is replacing, (iii) the FTE number of the new location is the same or smaller than the FTE number at the replaced location, and (iv) Client provides RLDatix with written notice of the change within 90 days of making the substitution (and Client must include in such notice the address and FTE total of both the new and replaced location(s)), and (iv) the Licensed Materials are no longer used at the replaced location.  Supplemental License Fees will be applicable where FTE growth and/or new locations (in relation to the Order), cannot be accommodated through the process of Location Substitution per this paragraph.
   7. Acceptance.  Within three (3) months of delivery of the Licensed Materials or making them available for use or download, Client shall complete testing and evaluation of the Licensed Materials.  In the event that there is a material non-conformance in the operation of the Software or a material non-conformance in the other Licensed Materials during this period, Client shall provide written notice thereof to RLDatix.  A material non-conformance in the operation of the Software is defined as a Severity Level 1 or Severity Level 2 issue as per the Standard Support Plan. RLDatix shall then have fourteen (14) days to address the non-conformance or defect in accordance with the terms of the Standard Support Plan and to provide Client with a written Notice of Repair, thereafter starting a fourteen (14) day time period for Client to retest and re-evaluate the Licensed Materials. In the event the non-conformance is not cured within this time period, Client, at its sole discretion, can extend the cure period for such non-conformances or terminate the applicable Order.  The Licensed Materials shall be deemed accepted by Client upon the earliest of (i) Client providing written notice of acceptance, (ii) Client not presenting a notice of non-conformance or defect within the first thirty (30) days after Client places the Software into a production/live environment for go live, (iii) Client not presenting a notice of non-conformance or defect within the first three (3) months after the Licensed Materials is made available to Client for use (or, as the case may be within three (3) months of making the Licensed Materials  available for download), or (iv) more than fourteen (14) days passing since RLDatix’s last Notice of Repair being provided to Client without a written notice of material non-conformity being issued by Client, such date being the “Acceptance Date”.
   8. Professional Services: RLDatix will provide any required implementation and professional services as listed in the Order (the “Professional Services”) and defined in an applicable Statement of Work (“SOW”).
   9. Data Protection:  RLDatix will maintain appropriate administrative, physical and technical safeguards designed for the protection of the security, confidentiality and integrity of Client Data, including measures designed to prevent access, use, modification or disclosure of Client Data by RLDatix personnel, as required to provide the Licensed Materials and prevent or address service or technical problems.
   10. Hosting: Hosting services may be provided by a hosting partner  that is a subcontractor of RLDatix. Subject to the terms of this Agreement, RLDatix shall be responsible for the actions of the Hosting Partner, to the extent that such actions are directly related to the services provided to Client.
   11. Support and Maintenance.  Support and maintenance services (“Maintenance”) will be provided in accordance with the then-current version of the Standard Support Plan.  RLDatix reserves the right to make changes to the Standard Support Plan and the policies within it to improve or enhance the support and maintenance.
   12. Limitation on Version.  RLDatix will provide Maintenance for only the most current version of the Software and the previous two versions preceding the release of the most current version of the Software, subject only to Client's payment of the applicable Maintenance fees as provided hereunder.  RLDatix may, in its sole discretion, offer Maintenance on a time and materials basis for older versions of the Software and shall be predicated on Client currently receiving Maintenance.
   13. Professional Services Terms and Conditions. The parties agree that all Professional Services will be supplied in accordance with the relevant Order and any associated SOW. If Client does not materially adhere to the guidelines in the relevant SOW, RLDatix reserves the right to either (i) perform the services on a time and materials basis, or (ii) not perform the services. Services dates and times which have been agreed to by both parties which are later cancelled or rescheduled at Client’s request will require that: (i) all such fees for delivered Professional Services shall become immediately due and payable; (ii) Client shall reimburse RLDatix for expenses incurred prior to the cancellation or rescheduling notice being received; and (iii) if RLDatix is notified less than twenty (20) business days before the scheduled date, forfeiture by Client of the service hours which RLDatix is reasonably unable to re-book with another client for the same date and time. Any Services listed on the associated Order must be used by Client prior to the one-year anniversary of the Effective Date.  Any Services unused by Client as of that time shall expire. Unused services cannot be transferred to other engagements.
   14. Out-of-Pocket Expenses. Expenses incurred by RLDatix in providing on-premise training or services shall be fully reimbursed by Client and are in addition to fees otherwise listed in the Order unless explicitly stated otherwise.
4. CLIENT RESPONSIBILITIES WITH RESPECT TO THE LICENSED MATERIALS
   1. Responsibilities:  Client shall ensure that: (i) the maximum number and type of Authorized Users that will be permitted to use the Licensed Materials and their mode of access shall comply with the applicable Order; (ii) the Authorized Users will use the Licensed Materials in accordance with the terms and conditions of this Agreement and the applicable Order; and (iii) its network and systems used in conjunction with the Licensed Materials comply with the Documentation that may be updated from time to time. Client is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to RLDatix’s data centers and maintaining the security of its equipment and account access passwords. Client shall cooperate with RLDatix to permit RLDatix to install, support, troubleshoot or otherwise provide services, which may include but not be limited to the provision of reasonable facilities and access to systems and equipment and the assignment of appropriately skilled and trained personnel to interact with RLDatix representatives.  If Client fails to fulfill its responsibilities, RLDatix shall be relieved of the obligation to provide services to Client which are made more difficult or expensive by reason of Client’s failure to fulfill Client’s responsibilities.  RLDatix may, in its sole discretion, offer to continue providing services to Client under such circumstances for an additional charge.
   2. Client Data: Client acknowledges that the collection of Client Data is the sole and exclusive responsibility of Client. Client acknowledges that RLDatix is not responsible in any way for any intellectual property infringement or the violation of any third party’s rights or any laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising from or relating to the Client Data.  In relation to all personal data comprised within the Client Data, Client warrants that such personal data shall have been obtained and supplied to RLDatix in compliance with applicable laws and Client warrants that it has obtained all necessary consents and approvals from users that are necessary to permit RLDatix to provide the services under this Agreement. Client further agrees to not use the Licensed Materials to store, process or transmit any sensitive financial information, including but not limited to any account number, credit or debit card number (with or without any required security code) or password that would permit access to an individual’s financial account, and RLDatix disclaims responsibility for any such data.
   3. Trade Sanctions: Each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, the Client is solely responsible for compliance related to the manner in which the Client chooses to use the Licensed Materials, including the Client’s transfer and processing of Client Data. The Client represents and warrants that the Client and its financial institutions, or any party that owns or controls the Client or its financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government, the United Kingdom Government, the European Union or its Member States, or other applicable government authority.
5. PAYMENT AND INVOICING
   1. Fees: Software is purchased on a subscription or perpetual basis as specified in the applicable Order and subject to the First Year Fee as set out in the Order. Additional purchases of Licensed Materials may be added during the Term (as specified below).  Fees for Professional Services will be offered on a one-time or subscription basis as set out in the applicable Order. If Client cancels its order, fails to pay the specified fees for the duration of the Minimum Commitment in accordance with this section, or this Agreement is otherwise terminated (other than for the failure of the Software to be accepted), Client agrees to immediately pay all outstanding invoices and 100% of all remaining fees otherwise due for the remainder of the term of the Minimum Commitment.
   2. Invoicing and Payment: All fees are invoiced in advance, unless otherwise set out in the applicable Order. Unless otherwise stated in the applicable Order, invoiced charges are due within thirty (30) days from receipt of invoice. Payment obligations are non-cancelable and fees paid are non-refundable except as otherwise set out in this Agreement.
   3. Late Payment: If any amounts are not received by RLDatix by the date specified on the applicable Order (unless subject to good faith dispute), then such charges shall accrue late interest at the rate of 1.5% compounded (19.6% per annum) of the outstanding balance per month or the maximum rate permitted by law (whichever is lesser), from the date the payment was due until the date paid; and RLDatix may, without limiting its other rights and remedies, suspend  Client’s access to the Licensed Materials, in whole or in part, until such amounts are paid in full.
   4. Taxes: Unless otherwise stated, fees do not include any Taxes. Client is responsible for paying all Taxes associated with the purchases under the Order where applicable. If RLDatix has the obligation to pay or collect any Taxes associated with an Order for which Client is responsible, then Client shall pay or reimburse RLDatix the amount of the Taxes.  For clarity, RLDatix is solely responsible for taxes assessable against it based on its income, property or employees.
6. PROPRIETARY RIGHTS
   1. Licensed Materials: Subject to the limited rights expressly granted hereunder, RLDatix reserves all rights, title and interest in and to the Licensed Materials and all modifications and improvements to the Licensed Materials, plus all related intellectual property rights. Except as expressly stated in this Agreement, this Agreement does not grant Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Licensed Materials. Any Modifications to any part of the Licensed Materials, excluding the Third Party Software, will be owned by RLDatix immediately on creation regardless of whether the Modifications were made at the request of Client or not.  To the extent Client owns or acquires any right, title, or interest in and to any Modifications, Client hereby assigns to RLDatix all such right, title, and interest in and to such Modifications, including all intellectual property rights therein.  RLDatix will own all intellectual property rights in any works created in performing this Agreement or in providing any Licensed Materials or Professional Services.
   2. Client Data: Client reserves all rights, title and interest in and to the Client Data, and subject to the limited rights granted by Client hereunder, RLDatix acquires no right, title or interest from Client under this Agreement in or to Client Data or any intellectual property rights therein.  Client hereby grants to RLDatix an irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to (i) de-identify any and all Protected Health Information obtained by RLDatix under this Agreement in accordance with the de-identification requirements of 45 CFR 164.514(a)-(b), and use and disclose such de-identified data consistent with 45 CFR 164.502(d) for the proper management and administration of RLDatix or to carry out its legal responsibilities, and (ii) combine Protected Health Information disclosed by Client to RLDatix with any de-identified or aggregated data maintained by RLDatix (provided that aggregated Protected Health Information is first de-identified by RLDatix in accordance with HIPAA), and to make such Protected Health Information available to other Covered Entities (as defined under HIPAA) to enable such Covered Entities or RLDatix to perform comparative analyses of their healthcare operations with the benefit of such data.
7. CONFIDENTIALITY
   1. Confidentiality: The Receiving Party shall: (i) protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care); (ii) not use (except to perform its obligations hereunder or exercise its rights hereunder) or disclose to any third person any such Confidential Information, and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to such Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less than those herein.  If the Receiving Party is required by law to make any disclosure of such Confidential Information, the Receiving Party, if permitted by law, shall first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and reasonably cooperate with the Disclosing Party in seeking to obtain such protection.  Each Party may also confidentially disclose the terms and conditions of this Agreement to actual or potential financing sources or acquirers.
   2. Feedback: To the extent Client provides any suggestion, idea, enhancement requests, recommendations or comments (“Feedback”) to RLDatix, such Feedback will not be considered Confidential Information and RLDatix will have the unrestricted right to use, profit from, disclose, publish or otherwise exploit any Feedback without any compensation to Client. Client shall have no intellectual property rights in any developments arising from any Feedback.
8. DISCLAIMER
   1. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN EACH SCHEDULE, RLDATIX MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THAT OPERATION AND ACCESS OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY OR THOSE ARISING FROM STATUTE OR USAGE OF TRADE.
   2. CLIENT ACKNOWLEDGES AND AGREES THAT RLDATIX HAS NOT REPRESENTED ITS PRODUCTS AS HAVING THE ABILITY TO DIAGNOSE DISEASE, PRESCRIBE TREATMENT, OR PERFORM ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE. THE PARTIES AGREE THAT, AS BETWEEN CLIENT AND RLDATIX, CLIENT IS RESPONSIBLE FOR THE ACCURACY AND QUALITY OF CLIENT CONTENT AS INPUT INTO THE PRODUCTS. CLIENT ACKNOWLEDGES AND AGREES THAT RLDATIX DOES NOT PROVIDE MEDICAL SERVICES TO PATIENTS AND THAT THE OBLIGATION TO EXERCISE INDEPENDENT MEDICAL JUDGMENT IN RENDERING HEALTH CARE SERVICES TO PATIENTS LIES SOLELY WITH THE HEALTHCARE PROFESSIONAL PROVIDING THE SERVICES.
9. INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT
   1. RLDatix will defend at its expense any IP Claim and will pay all costs and damages finally awarded against Client by a court of competent jurisdiction or any settlement amounts finally agreed to by RLDatix as a result of any such IP Claim, provided that Client (i) promptly notifies RLDatix in writing of such IP Claim, (ii) transfers sole control of the defense of the IP Claim and all negotiations leading to a settlement or resolution (provided that Client will have the right to reasonably participate, at its own expense, in the defense of any such IP Claim); and (iii) fully co-operates with and assists RLDatix in the defense of such IP Claim.
   2. If an IP Claim arises, or in RLDatix’s opinion, may arise, then RLDatix may at its sole option and in its sole discretion (i) replace or modify that portion of the Licensed Materials so as to avoid the IP Claim; (ii) procure the right for Client to continue the use of the Licensed Materials, or (iii) terminate that portion of the applicable Order corresponding to the IP Claim and refund to Client a pro rata amount of the fees actually paid by Client to RLDatix for the unused portion of the annual fees for such Order.
   3. The foregoing indemnities will not apply to any IP Claim based upon or arising from (i) any unauthorized use or modification of the Licensed Materials; (ii) use of the Licensed Materials in combination with any software, data, content or hardware not provided or required by RLDatix, to the extent the IP Claim relates to the combination or (iii) any work product based on specifications provided by Client to the extent the IP Claim related to such work product created based on those specifications.
   4. THE FOREGOING REPRESENTS CLIENT’S SOLE AND EXCLUSIVE REMEDY AND RLDATIX’S ENTIRE LIABILITY AND OBLIGATION WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
10. LIMITATION OF LIABILITY
    1. TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER CAUSED, INCLUDING LOSS OF DATA, LOSS OF PROFIT, LOSS OF  REVENUES OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CLIENT IN THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM LEADING TO SUCH LIABILITY.
    3. SECTION 10.2 SHALL NOT APPLY TO (i) CLIENT’S PAYMENT OBLIGATIONS FOR THE SERVICES UNDER THIS AGREEMENT; (ii) ANY BREACH OF SECTION 4.1 ; (iii) INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.1; OR (iv) EITHER PARTY’S FRAUD, WILFUL MISCONDUCT OR GROSS NEGLIGENCE.
11. TERM AND TERMINATION
    1. Effective Date:  The License granted herein commences (and the terms and conditions and software license making up this Agreement are adopted by Client), on the Effective Date, which shall commence on the earlier of (i) the date Client signs the Order, (ii) the date by which Client provides a purchase order consistent in all respects with the terms set forth herein, (iii) the date on which RLDatix provides services or software pursuant to this Agreement, (iv) in the case of a Subscription Term, the first day of the first license key being operational, or (v) the date on which Client installs, copies or in any way uses the Licensed Materials.
    2. Subscription Term. For Licensed Materials licensed under a subscription model, the term of this Agreement shall be the term set out in the first Order under this Agreement (the “Term”, with the first twelve months of the Term being the “First Year”). The Agreement will automatically renew for additional periods of one year (each a “Renewal Term”; the First Year along with any Renewal Terms being the “Subscription Term”) unless either Party gives notice of non-renewal to the other Party at least three months before the end of the Subscription Term. Additional Subscriptions purchased on any subsequent Order will co-terminate with the Subscription Term. Client’s Subscription License fee includes a subscription to Maintenance for the term of the Subscription Term.  A Subscription Term cannot be discontinued or terminated during the Minimum Commitment.
    3. Perpetual Term. For Licensed Materials licensed under a perpetual model, the Term shall survive until terminated.
    4. Maintenance Term.  For Licensed Materials licensed under a subscription model the Maintenance Term coincides with the Subscription Term. For Licensed Materials licensed under a perpetual model, Maintenance is available for one (1) year terms. Unless otherwise indicated on the Order, the “First Year", being the first year of Maintenance, shall commence on the Effective Date of the Agreement, the month and day of which shall become known as the “Renewal Date.” The Renewal Date shall constitute the commencement date of each successive one-year Maintenance Term (each a “Renewal Term”). Following the First Year (and completion of the Minimum Commitment period if applicable), Maintenance shall be renewed for successive one year terms on the Renewal Date, provided, however, that either party may, by written notice to the other party at least three (3) months prior to the expiration of the First Year or any Renewal Term elect to discontinue Maintenance as of the end of the latter of (i) the then-current Maintenance Term and (ii) the Minimum Commitment.  In the event that Client does not renew its term of Maintenance with RLDatix and later elects to receive Maintenance, Maintenance may be reinstated by RLDatix, in its sole discretion, for a Maintenance fee equal to (i) the fee that Client would have paid had Client retained the Maintenance since termination of Maintenance, prorated for any partial periods, plus (ii) prepayment of Maintenance fees for the following full term, plus (iii) a reactivation fee equal to 10% of the total of (i) and (ii) above.  If Client and RLDatix elect to reinstate Maintenance as set forth above, and the Licensed Materials are licensed under a perpetual model, RLDatix shall provide Client with the most recent version of the Software and provide Maintenance as described herein. Maintenance cannot be discontinued nor terminated in accordance with this section during the term of a Minimum Commitment.
    5. Termination: If either Party (i) fails to substantially comply with any material provision of this Agreement or any Order, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching Party may terminate this Agreement or the affected Order.  Upon expiration or termination of this Agreement, (a) Client shall cease any further use of the Licensed Materials or Documentation, (b) each Receiving Party will return or destroy, at the Disclosing Party’s option and upon written request, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control, (c) all fees that have accrued as of such expiration or termination, and Sections 5, 6, 9, 10, 11 and 12, will survive any expiration or termination of this Agreement or the affected Order and (d) if this Agreement or an Order is terminated due to RLDatix’s uncured breach, then RLDatix will refund to Client a pro rata amount of the annual fees actually paid by Client to RLDatix for the unused term of the affected Order.
12. GENERAL
    1. Entire Agreement. This Agreement, the Order, the Schedules, the Terms of Use Addendum (where applicable), the Hosting Addendum (where applicable), the Standard Support Plan Schedule (where applicable), and any other document expressly referred to in the body of this Agreement or Order constitutes the entire agreement between the parties relating to any and all software or services purchased by Client from RLDatix, and supersedes all prior agreements, understandings and representations as to the subject matter set forth in this Agreement and shall control over any different or additional terms of any purchase order or other non-RLDatix ordering document, and no terms included in any such purchase order or other non-RLDatix ordering document shall apply to the Licensed Materials.  The terms of this Agreement can only be varied by a written agreement signed by both RLDatix and Client or an updated version of this Agreement being presented by RLDatix and accepted by Client.  The headings in the Agreement are provided for convenience only and shall not be construed to infer intent or meaning.  In the event of a conflict between the terms of this Agreement and any other document forming part of the Agreement (including, but not limited to, the Order, the Hosting Addendum (where applicable) and the Standard Support Plan Schedule), the order of precedence shall be the Order, the Hosting Addendum, this Agreement, the Standard Support Plan Schedule. In the case of any other document, unless the other document is signed by both parties and makes specific reference to this Agreement and identifies by section or paragraph number the specific elements of this Agreement in respect of which the other document is to take precedence, it shall have no bearing.  No general statement that another document takes precedence shall apply. In the event of a conflict between this Agreement and an Order, the terms of this Order shall control.
    2. Assignment: Neither Party may assign this Agreement nor any rights or obligations herein without the other Party’s prior written approval, except that either Party may assign this Agreement to a successor to substantially all of its assets or business related to this Agreement or an Affiliate, subject at all times to Section 3 of this Agreement. Any purported assignment in violation of this Section shall be void.
    3. Miscellaneous: Notices to RLDatix provided must be addressed to the Legal Department of RLDatix and emailed to legal@RLDatix.com. Notices to Client may be delivered to the contact information for Client provided in the Order.  The parties expressly exclude application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Conventions, 1980).  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    4. Applicable Law, Incompatibility: If Client is based in the United States this Agreement will be governed by the laws of the State in which Client is based. If Client is based in the United Kingdom this Agreement will be governed by the laws of England and Wales. If Client is based in the EU this Agreement shall be governed by the laws of Ireland.  If Client is based in Australia or New Zealand this Agreement will be governed by the laws of the State of Victoria, Australia. Otherwise, this Agreement will be governed by the laws of Ontario, Canada.  If a law, regulation or ordinance prevents a party from agreeing to one or more terms of this Agreement or in the event that any of the terms of this Agreement become or are declared to be invalid or unenforceable, then this Agreement will be deemed to be amended to reflect the limit of what is permitted by the law, regulation or ordinance.
    5. Force Majeure Event: No delay, failure or default, will constitute a breach of this Agreement, to the extent caused by acts of war, terrorism, hurricanes, earthquakes, pandemic, other acts of God or nature, strikes or other labor disputes, riots, power grid failure or other causes beyond the performing Party’s reasonable control (collectively, a “Force Majeure Event”).  
    6. Ethics: Each Party shall hold itself and its Affiliates to high ethical standards, including basic human rights, not engaging in any activity, practice or conduct which would constitute an offence under anti-slavery or anti-bribery legislation, encouraging fair and equal treatment for all persons, the provision of safe and healthy working conditions, respect for the environment, the adoption of appropriate management systems and the conduct of business in an ethical manner, without corruption.
    7. Liability of RLDatix:  Client shall defend, indemnify, protect and hold harmless RLDatix for all claims and actions arising out of Client’s use or misuse of the Licensed Materials, without limitation.
    8. Audit Rights.  Client shall maintain accurate books and records relating to the Licensed Materials, including but not limited to the use made thereof by Client in comparison to the License Thresholds and limitations on the Order.  Wherever possible, such books and records shall be in a form to permit remote access and review.  RLDatix may, at its sole cost and expense, conduct an audit of Client’s books and records relating to the Licensed Materials during normal business hours, with reasonable advanced notice and no more frequently than annually, and subject to any reasonable requirements of Client in respect of confidentiality.  In the event that an audit reveals that Client’s use of the Licensed Materials is in excess of any License Thresholds at any time, Client shall immediately tender the applicable supplemental fees, and should the audit reveal that Client’s use was more than 5% in excess of any License Threshold at any time, Client shall reimburse RLDatix for the reasonable costs of the audit.
    9. Third Party Applications: Third-Party applications purchased by Client through RLDatix or otherwise shall not be governed by this Agreement.  Some elements of Third-Party Software require the distribution of separate notices, license terms and/or source code, and all Third-Party Software is subject to the license terms of such Third Party Software. None of the terms of the Third-Party Software licenses diminish or minimize the rights RLDatix is otherwise offering to Client in this Agreement. For each such element of Third-Party Software, the applicable licenses, notices or other elements can be found on the distribution media for the Software licensed by this Agreement in the folder named “Third-Party Software” and on the RLDatix web site at https://rldatix.com/en-nam/company/terms.
    10. On-Premise Software: If Client is purchasing Licensed Materials for an on-premise deployment, the terms and conditions stated in the On-Premise Platform Terms and Conditions Schedule shall apply.
    11. Hosted Software: If Client is purchasing Licensed Materials for a SaaS or hosted deployment, the terms and conditions stated in the Hosted Platform Terms and Conditions Schedule shall apply.

SCHEDULE 1
HOSTED PLATFORM TERMS AND CONDITIONS SCHEDULE

1.             The terms and conditions of this Schedule 1 apply to Client’s use of RLDatix Software via RLDatix’ hosted deployment (“HD”) or Software-as-a-Service-based subscription services (“SaaS”), professional and support services, along with any related work product (such HD, SaaS, professional and support services and work product, collectively, the “RLDatix Platform”) ordered by Client under an Order, Statement of Work, or other ordering document issued by RLDatix (including any online form, which Client agrees is subject to acceptance or rejection by RLDatix) specifying the services to be provided hereunder (each an “Order” and collectively, the “Orders”). The terms contained in this Schedule 1 shall apply to the RLDatix Platform only and are in addition to all other terms stated within the main body of the Agreement. All usage restrictions, IP terms and other terms applicable stated in the main body of the Agreement above shall apply to the RLDatix Platform.

2. SERVICE

2.1           Service Level Agreement and Support Services: RLDatix will provide the RLDatix Platform and related support services (in accordance with the Standard Support Plan Schedule).  Client’s Subscription License Fee includes a non-cancellable subscription to Maintenance for the term of the Subscription License or any renewal thereof.

3. WARRANTY

3.1           Hosting Warranty: RLDatix warrants that the RLDatix Platform, as delivered, shall perform materially in accordance with the specifications contained in the then current Documentation that relates to the RLDatix Platform. In the event of any breach of the warranty in this sub-section during the term of this Agreement, RLDatix shall, as its sole liability and Client’s sole remedy (in addition to any termination right that may arise from such warranty breach), diligently remedy such deficiencies that cause the HD or SaaS to not conform to this warranty. If RLDatix determines that it is unable to remedy such deficiencies, RLDatix may terminate that portion of the applicable Order affected and refund to Client a pro rata amount of the fees actually paid by the Client to RLDatix for the unused Subscription Term of the defective RLDatix Platform.

3.2           Professional Services: RLDatix warrants that the Professional Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. Client’s sole and exclusive remedy (in addition to any termination right that may arise from such warranty breach) with respect to this warranty will be that RLDatix shall correct the breach of this warranty or reperform the services within a commercially reasonably period of time within a commercially reasonable period, provided that Client reports any warranty claims to RLDatix within thirty (30) days of the delivery of the related Professional Services.

3.3           EXCEPT FOR THE EXPRESS WARRANTIES SET OUT ABOVE, RLDATIX MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THAT OPERATION AND ACCESS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY OR THOSE ARISING FROM STATUTE OR USAGE OF TRADE.

4. TERMINATION

4.1.           Return of Client Data: Upon Client’s written request, where such request must be made within thirty (30) days following expiration or termination of this Agreement, RLDatix shall return Client Data to Client via secure FTP and in an industry standard file format at no cost to Client. All Client Data shall be deleted by RLDatix within ninety (90) days after expiration or termination of this Agreement. Notwithstanding the foregoing, RLDatix shall be permitted to retain any Client Data that is required to be retained as part of ongoing or contemplated litigation.

4.2.            Transition Services: RLDatix may provide transition services to Client, upon expiration or termination of this Agreement, under an applicable Statement of Work signed by both Parties and at RLDatix’ then current fee rate for such Professional Services.

SCHEDULE 2
ON-PREMISE PLATFORM TERMS AND CONDITIONS SCHEDULE

1. Hardware and Other Software.  Client shall be solely responsible to obtain and ensure the proper operation of the hardware and software necessary to operate and use the Licensed Materials.  Any costs associated with acquiring, maintaining or using Client hardware or any supporting software (including but not limited to operating systems) and/or any connectivity necessary to use or support the Licensed Materials shall be entirely those of Client.
2. Environment. Under a Perpetual License, Client may install and operate the Software in one live / production environment unless specified otherwise in the Order. Except as is necessary to install and operate the Software in a single live / production environment, and a single backup thereof, and one training / test environment, Client shall enjoy no right of duplication of the Software.
3. Remote Access. Where Client hosts the Software, Client will assist RLDatix in establishing remote access through an Internet-based third-party remote access solution when RLDatix requires access to effectively support the Software.
4. Enhancements.  RLDatix will periodically group revisions, updates and/or Enhancements into a version or release of the Licensed Materials that will be sent to Client (or made available for download by Client), together with instructions for the installation thereof.  Client will be responsible for installing the new version or release of the Licensed Materials.  At Client's request, RLDatix will lead the installation of the updated version of the Licensed Materials in the Client’s environment, at RLDatix’s then-current Professional Services rates on a time and materials basis.  Client is solely responsible for adding versions and releases of the Software on a timely basis.