Software Subscription Agreement - Hello Health United States

This Software Subscription Agreement (“Agreement”), effective as of date of the executed Order Form between the parties (attached hereto as Exhibit “A”), or the first use or August, 01, 2021 of the software or services by an authorized user or client, whichever is later (“Effective Date”), is entered into between HELLO HEALTH, LLC, a Delaware LLC (“HELLOHEALTH”) and the undersigned client (“CLIENT”). This Agreement sets forth the terms and conditions whereby HELLOHEALTH shall provide its Solution (as defined below) and related services to CLIENT on the terms set forth below. This Agreement supersedes updates prior agreement entered with Hello Health Inc. due to the recent acquisition of HelloHealth by PracticeSuite, Inc. Now, therefore, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

“Authorized User” means an employee, agent or consultant of CLIENT accessing the Solution and, with respect to the practice portal component of the Solution only, a patient of CLIENT that has accepted the terms relating to the use of the Solution, which terms are acceptable to HELLOHEALTH. HELLOHEALTH may change, update, modify, or upgrade Solution at any time by providing advanced notice of such changes.
“Local Service Provider” shall mean HELLOHEALTH’s Channel Partner or Value-Added Reseller entity or Medical Billing Company that may provide local on-site or remote services.
“Software” or “Platform” or “Solution(s) or Product(s)” shall mean HELLOHEALTH’s cloud-based software and its usage as per this Agreement. It shall also include any other related software utilized and/or made available by HELLOHEALTH along with their respective terms of service as published on their website.
“Update” means a release or version of the Software containing minor functional enhancements, error corrections or fixes that is indicated by a change in the numeric identifier for the Software in the digit to the right of the decimal.
“Subscription” or “Software Subscription” shall mean monthly usage of Platform paid as a monthly subscription as detailed in the Order Form signed by CLIENT, which is hereby incorporated and referenced herein as “Exhibit A” of this Agreement, or any other written and duly signed agreement between HELLOHEALTH and CLIENT. In the event there is an inconsistency between the terms of this Agreement and the Order Form, the terms of the Order Form shall control.
“CLIENT” includes each user accessing the HELLOHEALTH Platform in connection with CLIENT.
“Subscriber” shall mean Authorized Users that are licensed health care providers.
“Order Form” shall mean the pricing Exhibit A attached hereto and incorporated herein, signed at the beginning of the service, or subsequent Order Forms agreed to by CLIENT and HELLOHEALTH related to price, usage or other terms.
Portal or online portal or portalconnect shall mean online web access or smart phone app utilized by CLIENT’s patients to communicate or exchange information with the CLIENT.

2. FREE TRIAL EDITION, PAID EDITION AND ADD-ON SERVICES.

Free Trial Edition. For new clients, HELLOHEALTH may offer a Free Trial Edition. No Fees are due and payable by the CLIENT that uses the Free Trial Edition of the Software Subscription during the 30 day free trial period.
Paid Editions. CLIENT at their sole discretion can upgrade to Paid Editions.
Add-On Services. CLIENT at their sole discretion can upgrade to paid add-on services.

3. SOFTWARE SUBSCRIPTION.

General. Subject to the terms of this Agreement, HELLOHEALTH hereby grants CLIENT a non-exclusive, non-transferable subscription to use the Solution as provided by HELLOHEALTH solely for use in CLIENT’s internal business operations, including use by CLIENT’s Authorized Users (as defined above).
Hosted Services. HELLOHEALTH will provide CLIENT with access to the online hosted software subscription, data storage and data access for software and services as specified in Exhibit A.
Updates. HELLOHEALTH’s monthly subscription includes frequent updates to the software that CLIENT has subscribed to under this Agreement. Such updates shall not include paid add-on services/modules/features. CLIENT at its sole discretion may choose to subscribe to such paid updates at the price set by HELLOHEALTH.
Monthly Minimum. CLIENT understands and agrees that (i) all fees are based on the Subscription purchased as specified in Exhibit A (the Order Form signed by the CLIENT), whether or not actually used, and (ii) unless expressly stated otherwise in Exhibit A, the number of Paid Subscribers are a minimum amount that CLIENT has committed to for the relevant term and cannot be decreased during such term. In the event actual use exceeds the number of Subscribers or functionality or module type, CLIENT shall purchase additional Subscribers at HELLOHEALTH’s then-current fees. There shall be no fee adjustments or refunds for any decreases in usage.

4. CLIENT CARE (CUSTOMER SUPPORT SERVICES).

Support. During the term of this Agreement, HELLOHEALTH will use commercially reasonable efforts to provide support services (“Support”). Such Support will be provided by remote support unless explicitly agreed to in writing, from HELLOHEALTH’s Service facilities and will be in the form of phone, email or online chat. Support services may be provided by HELLOHEALTH’s Local Service Provider. Notwithstanding the foregoing, HELLOHEALTH is not required to provide any of the foregoing unless there is an error in the Software causing a material decrease in functionality and accessibility not due to, in whole or part, any decrease in performance or connectivity issues attributable to CLIENT or Authorized User’s Internet connectivity. The terms and conditions of such Local Service Provider based support services, if any, are beyond the scope of this Agreement. For a list of Local Service Providers, please contact legal@hellohealth.com. In the case of such Local Service Provider -based relationship, HELLOHEALTH has no contractual obligations to provide direct support services to the CLIENT under this Agreement, and CLIENT’s sole remedy is with Local Service Providers subject to the Local Service Provider’s Terms related to such services. Notwithstanding the foregoing, HELLOHEALTH will provide all support and other services reasonably necessary to enable the effective development, deployment, and use of any certified application programming interfaces (“API Technology “) provided by HELLOHEALTH.
Service Level Standards. HELLOHEALTH shall make commercially reasonable efforts to achieve the up-time and system availability commitments set forth in the Service Level Agreement attached hereto and incorporated herein as Exhibit B. HELLOHEALTH shall timely respond to requests from the CLIENT or from the Local Service Provider for assistance in accordance with the time frames and priorities set forth in Exhibit B.

5. THIRD PARTY SOFTWARE.

The Solution uses third party software and HELLOHEALTH agrees to use reasonable efforts to document and escalate any errors related to such third-party software to the software manufacturer for resolution; provided, however that HELLOHEALTH is not responsible for correcting any such errors in the third-party software. The end-user agreements, if any, that accompanies the LOCAL SERVICE PROVIDERS, or any third-party software or products associated with the Solution, is published by such third-party and governs the use of or access by CLIENT to the third-party software or product. This shall be published by the respective provider or acknowledged or accepted by the CLIENT.

HELLOHEALTH MAKES NO WARRANTY OF ANY KIND AS TO LOCAL/THIRD-PARTY SERVICE PROVIDERS, THIRD-PARTY SOFTWARE, THIRD PARTY PRODUCTS, OR THAT THE SERVICES, SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CLIENT agrees to review and comply with each third party’s terms of use and end user license agreement, to the extent applicable.

6. PRICING/FEES AND PAYMENT TERMS.

Fees. CLIENT agrees to pay the setup and subscription fees as set forth in the Exhibit A. CLIENT represents and warrants that it has reviewed the terms of Exhibit A, that such terms were duly negotiated, and that CLIENT accepts and agrees to the fees specified herein and as set forth on Exhibit A. No Fees are due from the CLIENT using the Free Trial Edition during the 30 day trial period. HELLOHEALTH reserves the right to update fees at any time, upon thirty (30) days’ email notice to CLIENT and updated fees shall become effective as of the date of an updated Order Form executed by the parties. CLIENT understands and agrees to updated pricing terms provided by HELLOHEALTH in accordance with this Section and affirms that the email address and contact information provided for receiving such notices is accurate and authorized for receiving such updates.
Taxes. The prices set in Exhibit A do not include taxes, if HELLOHEALTH is required to pay any other applicable Government duties, levies or taxes in respect to the Solution or services; HELLOHEALTH shall bill the CLIENT and CLIENT agrees to pay such taxes.
Payments. Payments for Online Software Setup and Monthly Online Software Subscription and related services as expressed in Exhibit A are immediately due upon execution of this Agreement. Recurring Monthly Online Software Subscriptions are billed in advance and due in full upon the first day of each month or upon completion of 30 days of usage. Other usage-based services are billed in arrears and due upon receipt. CLIENT shall maintain a credit card on file.
Non-Payment. HELLOHEALTH may suspend client access for non-payment of fees expressed in Exhibit A if invoices are not paid within 30 days. HELLOHEALTH will provide advanced notice prior of no less than 15 days to suspending access for non-payment. In addition, for outstanding undisputed invoices over 30 days, reactivation fees of $75 per occurrence and late fees may apply. Additional finance charges not to exceed the lower of 1% interest per month or the limit of the applicable laws shall be charged. In the event of suspension of access as specified herein, HELLOHEALTH will not restrict CLIENT’s access to patient data hosted by HELLOHEALTH as a part of the Subscription such that CLIENT is completely unable to view such patient data.
Dispute of Invoices. CLIENT shall have 30 days from the receipt of invoices or payment of monthly charges to dispute any portions of the invoices, or else such issue shall be deemed waived.
Price Increase. Each year, HELLOHEALTH reserves the right to increase its fees by the yearly percentage increase in the most recently published Consumer Price Index (all items) or by three percent (3%), whichever is greater. At the end of the Term of this Agreement, HELLOHEALTH shall provide 30 days’ notice of any price increase for the Subscription and other related software and services and such prices increases shall become effective thereafter. By executing this Agreement, CLIENT hereby agrees to the price increases described in this section and acknowledges that execution of an additional Order Form related to the same shall not be required.

7. HELLOHEALTH RESPONSIBILITIES.

Compliance with Applicable Laws. HELLOHEALTH shall comply with federal and state laws, including statutes, regulations, and rules relating to all applicable services hereunder including maintaining the privacy and security of Protected Health Information (“PHI”).
Ownership and Storage. HELLOHEALTH understands and agrees that CLIENT is the owner of all CLIENT data. HELLOHEALTH stores and maintains the data on behalf of the CLIENT and will comply with applicable laws related to providing access to CLIENT data. Notwithstanding anything to the contrary in this Agreement, HELLOHEALTH may monitor CLIENT’s use of the Software and collect and compile Aggregated Statistics and Data (meaning data and information related to CLIENT’s and Authorized Users’ use of the Software that is used by HELLOHEALTH in an aggregate and anonymized/fully de-identified manner, including to compile statistical and performance information related to the provision and operation of the HELLOHEALTH). All right, title, and interest in Aggregated Statistics and Data, including all intellectual property rights therein, belong to and are retained solely by HELLOHEALTH, and shall not be CLIENT’s confidential information.
Feedback. If CLIENT or any of its employees or contractors sends or transmits any communications or materials to HELLOHEALTH by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), HELLOHEALTH is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. CLIENT hereby assigns to HELLOHEALTH on CLIENT’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and HELLOHEALTH is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although HELLOHEALTH is not required to use any Feedback.
Records Delivery. During the term of this Agreement, upon CLIENT’s request in writing, HELLOHEALTH shall send CLIENT’s records in an encrypted electronic format to the CLIENT in a readable format with all necessary documentations on the interpretation of the file. Upon termination or expiration of this Agreement and subject to the terms of the Business Associate Agreement between the Parties, HELLOHEALTH will not be responsible for maintaining CLIENT records after delivery to the CLIENT and confirmation that CLIENT is able to read the file. CLIENT shall provide confirmation of validation and receipt of CLIENT records within 5 business days of the delivery of the file containing CLIENT records. No confirmation from the CLIENT after 21 days shall be deemed as a confirmation. Additional reasonable usual and customary charges may be applied at HELLOHEALTH’s discretion, subject to applicable law, for any services rendered by HELLOHEALTH after termination of this Agreement and CLIENT agrees to pay such charges.
Maintenance and Upgrade. As expressed in the Service Level Agreement in Exhibit B, HELLOHEALTH agrees not to perform maintenance or upgrades that would reasonably be expected to materially and adversely affect the Services or CLIENT’s data.
Unintended Consequences of Software Update. HELLOHEALTH will make commercially reasonable efforts to ensure that updates and enhancements to its Software and Products will not adversely impact CLIENT’s usage of the HELLOHEALTH platform.
External Connectivity. HELLOHEALTH shall provide connectivity services to authorized external parties including without limitation, lab, radiology, hospital and other health care providers and other medical devices as part of its hosted software subscription to enable CLIENT to share data between these systems and HELLOHEALTH. The monthly software subscription paid under this Agreement shall include the connectivity interfaces. Additional development and support work is involved for the development of the connectivity and maintenance of the connectivity services. HELLOHEALTH will work with the external entities to develop such interfaces by directly charging the external entities and there will be no cost to the CLIENT for the development of such interfaces. Such external connectivity availability is dependent upon the approval of the project by such external entities and their cooperation.
Beta Features. HELLOHEALTH, in its sole discretion, may invite CLIENT to access certain beta features from time-to-time. With respect to the same, CLIENT understands and acknowledges that such beta features: (i) are not final products and have not been made commercially or publicly available by HELLOHEALTH; (ii) may not operate properly, be in final form, or be fully functional; (iii) may contain errors, design flaws, or other problems; (iv) may not be fully functional; (v) may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (vi) may change and may not become generally available; and (vii) HELLOHEALTH is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service. Any beta features made available to CLIENT by HELLOHEALTH are provided AS IS. CLIENT assumes all risk arising related to use of beta features, including, without limitation, the risk of damage to information systems or corruption or loss of data.
ONC CERTIFICATION: PLEASE BE ADVISED THAT HELLOHEALTH IS NOT CERTIFIED UNDER THE OFFICE OF THE NATIONAL COORDINATOR’S (“ONC”) HEALTH IT CERTIFICATION PROGRAM, THEREFORE CLIENT CANNOT MEET CERTIFIED ELECTRONIC HEALTH RECORD REQUIREMENTS UNDER THE MERIT-BASED INCENTIVE PAYMENT SYSTEM (“MIPS”), PROMOTING INTEROPERABILITY, OR OTHER PHYSICIAN PAYMENT PROGRAMS. HELLO HEALTH EHR IS NOT LISTED ON THE CERTIFIED HEALTH IT PRODUCT LIST AT https://chpl.healthit.gov.

8. CLIENT RESPONSIBILITIES.

General. CLIENT shall be responsible for:
1. providing sufficient information regarding errors or nonconformities in the Solution to HELLOHEALTH;
2. providing all reasonable cooperation to HELLOHEALTH with respect to the Software;
3. assuming all risk related to use or misuse by CLIENT’s Authorized Users, contractors, agents or other third parties; including unauthorized use or misuse of access passwords;
4. maintaining User ID’s and passwords as private and confidential information and not allowing passwords to be shared or used by multiple users;
5. immediately deactivating accounts of users who cease to need access, and restrict remote access, limit daily access hours, or deactivate or restrict any other Authorized Users that do not need access to the Solution, or notify HELLOHEALTH or its LOCAL HELLOHEALTH SERVICE PROVIDER to deactivate such account. CLIENT shall immediately notify HELLOHEALTH should CLIENT discover that a User ID has been used for unauthorized purposes.
6. HELLOHEALTH strongly recommends CLIENT secure a backup Internet connection from a different service provider to connect to HELLOHEALTH in the event of a failure of the primary Internet connection.
Data Storage. CLIENT understands and agrees that each CLIENT is allowed 10 GB of total data storage per practice. Up to an additional 20 GB of storage is available for $25 per month. Unlimited data storage is available for $45 per month. HELLOHEALTH can be configured to connect to the CLIENT’s local server or machine for the purpose of document storage only. As an option available at no additional cost to CLIENT, HELLOHEALTH shall provide configuration assistance to CLIENT to set up storage on a local machine within the CLIENT’s office to store scanned paper charts. CLIENT is solely responsible for the privacy and security of information stored locally as described herein. In no event shall HELLOHEALTH be responsible or liable for ensuring compliance with applicable privacy and security laws related to information stored locally by CLIENT. CLIENT understands and agrees to maintain such storage in compliance with applicable law. Existing Hello Health clients as of 01/01/2022, the storage overage charges shall not be applicable.
EHR. As an Electronic Health Record (“EHR”), HELLOHEALTH may provide general clinical contents (encounter sheets, canned sheets, flow-sheets, progress monitor and others), configurations, and related data as it pertains to the CLIENT’s specialty. CLIENT agrees to review this data and make reasonable and legally compliant changes as needed to fulfill CLIENT’s needs. CLIENT retains sole and exclusive responsibility for any medical decisions or actions with respect to a patient’s medical care and for determining the accuracy, completeness or appropriateness of any diagnostic, clinical or medical information provided by the Software and/or or Services. In no event will HELLOHEALTH be responsible for assuming the professional responsibilities of clinicians and the clinical decisions made by health care providers. CLIENT is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable treatment information, medical and medication history, allergies, etc.), obtaining patient consent to use the Software (including, without limitation, the patient portal), and for all decisions and actions related to rendering medical care, care coordination, and case management. CLIENT agrees to manage settings as necessary to prevent unauthorized disclosures of patient records (including records accessible in the patient portal) as necessary to comply with state and/or federal law.
External Connectivity. HELLOHEALTH shall provide or create connectivity with CLIENT’s external entities, such as labs, radiology center, hospitals, pharmacies and others to permit interaction and communication between the Solution and such external entities. CLIENT hereby authorizes HELLOHEALTH to exchange information as needed with such external entities as necessary to provide the Solution. HELLOHEALTH shall comply with its obligations under the Business Associate Agreement between it and Client when supporting such exchange. However, HELLOHEALTH has no control over the data privacy and security compliance of external parties that are not subcontractor business associates of HELLOHEALTH.
Online Portal & Other Electronic Communications. As an add-on service, HELLOHEALTH provides a secure Online Practice Portal module that allows online patient messaging. CLIENT is responsible for instituting policies and procedures that ensure identity verification, access controls, and termination procedures as required by HIPAA. HELLOHEALTH has no responsibility for communications between CLIENT and patients through communication channels not managed by HELLOHEALTH (including SMS messaging email messaging, collectively referred to as “Electronic Communications”). Additionally:
1. Patients utilizing the Patient Portal must electronically accept the generic terms and conditions of the Patient Portal at initial log-in and subsequent updates published from time to time. The terms herein are generic in nature, CLIENT agrees to review these terms from time to time. To make any changes to this, please reach out to customer services for assistance.
2. CLIENT shall be solely responsible to maintain compliance with applicable laws related to all Electronic Communications, including without limitation, data privacy and security laws and the Telephone Consumer Protection Act (“TCPA”) or other similar state laws.
3. CLIENT is solely responsible for managing access to the patient portal, including managing necessary consents related to electronic communications with patients made through the portal or otherwise. In the event HELLOHEALTH offers an example registration form for the patient portal, the form shall not constitute legal advice, and CLIENT acknowledges that it is solely responsible for ensuring that registration forms and processes comply with applicable Laws and regulations.
4. CLIENT agrees that any registration or use HELLOHEALTH services that provide for Electronic Communications and/or patient portal access (including any request forms or use of communications features), shall constitute a request for HELLOHEALTH to send the electronic communications at issue (for example, emails, faxes, phone calls, or standard text message reminders about upcoming appointments, special oﬀers, and upcoming events).
5. HELLOHEALTHis not responsible for any costs that may be incurred with a user’s telecommunication carrier as a result of using text messaging or other electronic communication service offerings. CLIENT agrees to inform individuals that such charges may be incurred.
6. HELLOHEALTH is not responsible for any costs that may be incurred with a user’s telecommunication carrier as a result of using text messaging or other electronic communication service offerings. CLIENT agrees to inform individuals that such charges may be incurred.
7. By providing telephone numbers and agreeing to accept Electronic Communications from HELLOHEALTH,CLIENT specifically authorizes HELLOHEALTH to send text messages or calls to such number. CLIENT represents and warrants it has the authority to grant such authorization. CLIENT is not required to consent to receive text messages or calls as a condition of using electronic services offered by HELLOHEALTH and may opt out of receiving such electronic communications at any time.
Telehealth. When using the Software or related service offerings from HELLOHEALTH to render treatment services to patients via “telemedicine” or “telehealth,” as defined by applicable State Law (hereinafter collectively referred to as “Telehealth Services”), CLIENT is solely responsible for: (i) complying with all applicable laws (including without limitation licensure requirements, accreditation requirements, professional standards, payor and regulatory requirements applicable to rendering treatment services to patients via Telehealth Services; (ii) all medical and professional decision making; (iii) ensuring appropriate documentation is maintained related to the Telehealth Services in a manner compliant with applicable Law and payor standards; (iv) obtaining any necessary patient consents; (v) billing and collecting for Telehealth Service encounters; (vi) using the HELLOHEALTH Telehealth Services in a manner consistent with the instructions and other information made available by HELLOHEALTH; (vii) informing patients of the risks associated with using Telehealth Services; and (viii) maintaining the equipment and devices used for accessing the HELLOHEALTH Telehealth Services in a manner that ensure the security and functionality of the Telehealth Services and related records.
Third Party Licensing. The CLIENT is solely responsible for compliance and adherence with any and all applicable third-party licensing or proprietary requirements for data, claim rules, and contents such as ICD, CPT, Insurance, Fee Schedule, clinical hands and others that are either converted from CLIENT’s current system or as keyed-in, uploaded, or interfaced into HELLOHEALTH. HELLOHEALTH is a subscription-based system and does not license software, data, or content including licenses to HELLOHEALTH software. Unless explicitly agreed to otherwise, all elements of HELLOHEALTH Software are utilized on a monthly subscription basis only.
Responsibility for Authorized Users. CLIENT is solely responsible and liable for each user’s (whether employees, healthcare providers, patients, or other users) compliance with the terms and conditions of this Agreement and applicable law. CLIENT further assumes sole responsibility and liability for results obtained from the use of the Software and for conclusions drawn from such use. PRACTICSUITE shall have no liability for any claims, losses or damages arising out of or in connection with CLIENT’s or any of its users’, including healthcare providers, patients, or other users’ (authorized or not) use of the Software or any third-party products, services, software, or web sites that are accessed via links from within the Software.
Client Data. CLIENT owns all right, title, and interest in the data that CLIENT provides to HELLOHEALTH or inputs into the Software (“Client Data”) or at a minimum is authorized to provide such data to HELLOHEALTH in connection with HELLOHEALTH’s performance under this Agreement. CLIENT represents that CLIENT has obtained the Client Data in compliance with all applicable patient consents, and applicable laws, and providing the Client Data to HELLOHEALTH or inputting the Client Data into the Software, and the storage of the same by HELLOHEALTH or HELLOHEALTH third-party service providers does not violate any patients consents or applicable laws. CLIENT hereby grants to HELLOHEALTH a non-exclusive, royalty-free, license to reproduce, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for HELLOHEALTH to provide the Services to CLIENT.
Use Restrictions. CLIENT and Authorized Users shall not use the Software for any purposes beyond the scope of the access and use granted herein. CLIENT and Authorized Users shall not: (i) copy, modify, or create derivative works of the Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, or transfer, the Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; (v) use the Credentials of another Authorized User to access or use the Software; (vi) input , upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious or harmful computer code; (vii) use the Software in any way that interferes with other subscribers use of the Software; or (viii) use the Software in any manner or for any purpose that infringes, misappropriates, or violates any applicable law.

9. PROPRIETARY RIGHTS.

All right, title and interest in CLIENT’s data will remain the property of CLIENT. HELLOHEALTH and its licensors shall respectively retain sole and exclusive ownership of all right, title and interest in and to the Solution, Aggregated Data and Statistics, and any updates, upgrades or modifications thereof, or in any ideas, know-how, changes, improvements, enhancements, development and additions or modifications to programs and data (encounter sheets, canned sheets, lookup values and other data) and programs during the course of this Agreement.

10. CONFIDENTIAL INFORMATION.

The Parties hereby agree to adopt, incorporate, and be bound by the terms of the Business Associate Agreement (“BAA”) published in the Legal Section of the Solution.
CLIENT agrees that any information regarding the Solution that is marked “confidential” or “proprietary”, or “copyright” which by its nature would be confidential, is proprietary to HELLOHEALTH and disclosure or use of such nonpublic information would cause substantial detriment to HELLOHEALTH. Neither CLIENT nor any of its employees or any Authorized Users will use, for their own account or for the account of any third party, or disclose to any third party any nonpublic Information regarding the Solution. Furthermore, CLIENT agrees that HELLOHEALTH does not wish to receive any information that may be considered CLIENT confidential. Notwithstanding the foregoing, all CLIENT data accessible to HELLOHEALTH shall be treated as confidential in accordance with this Section.
Nothing contained herein shall restrict or be interpreted to prohibit any communication regarding the usability, interoperability, or security of HELLOHEALTH Software or Services, relevant information regarding users’ experiences when using HELLOHEALTH Software, the business practices of PRACTICSUITE related to exchanging electronic health information, or the manner in which users of HELLOHEALTH have used its technology. HELLOHEALTH reserves all rights regarding its intellectual property.
HELLOHEALTH will not prohibit or restrict CLIENT or any person or entity from communicating any information (including proprietary information, confidential information, and intellectual property) when the communication is made for the following purposes: disclosures required by law; communicating information about adverse events, hazards, and other unsafe conditions to government agencies, health care accreditation organizations, and patient safety organizations; communicating information about cybersecurity threats and incidents to government agencies; communicating information about information blocking and other unlawful practices to government agencies; or communicating information about a health IT developer’s failure to comply with a Condition of Certification requirement, to the ONC or an ONC–ACB.

11. TERMS AND TERMINATION/CANCELLATION.

Term and Cancellation. This Agreement shall commence on the Effective Date and continue for a minimum term of (24) months unless otherwise stated in Exhibit A as executed by the CLIENT either during the Initial Term (the “Initial Term”) or during the renewal term (“Renewal Term”). Notwithstanding the foregoing, CLIENT may terminate this Agreement at the end of either Initial Term or Renew Term with 90 days’ written notice (“Notice Period”). This Agreement and Exhibits thereto shall supersede all prior Term and Notice Period.
Subscriber Cancelations. CLIENT must provide HELLOHEALTH with at least 30-days written notice of cancelation to cancel individual Subscribers, unless otherwise stated by the terms of Exhibit A. This requirement does not affect the contract term. Subscriber cancellations shall not reduce monthly minimums agreed to under the terms of this Agreement.
Refund. All fees paid are non-refundable.
Renewal Terms. Prior to the completion of term of 24 months, unless CLIENT provides HELLOHEALTH
with 90 days written notice of its intent to terminate this Agreement, this Agreement shall automatically renew at HELLOHEALTH
then-current rates and current Subscription Agreement terms for a subsequent 24 months term (the “Renewal Term”). The parties agree to timely execute an Order Form reflecting agreement to any applicable fee increases during such renewal.
Completion of Term. Upon termination of this Agreement at the end each Term, unless CLIENT provides HELLOHEALTH with 90 days written notice of its intent to terminate this Agreement, this Agreement shall automatically renew at HELLOHEALTH’s then-current rates and current Subscription Agreement terms for a subsequent 24 months. The parties agree to timely execute an Order Form reflecting agreement to any applicable fee increases.
Termination for Breach or Cause. CLIENT or HELLOHEALTH may terminate this Agreement at any time, upon written notice, if the other party breaches a material term of this Agreement and fails to cure such breach within forty-five (45) days of written notice of such breach by the non-breaching party. Either party may terminate this Agreement effective immediately if the other party:
1. terminates or suspends its business activities;
2. makes an assignment for the benefit of creditors;
3. becomes subject to control of a trustee, receiver, or similar authority; or
4. becomes subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within 60 days.
Termination for Failure to Meet Service Level Commitment. CLIENT shall have the right to terminate this Agreement at any time if the system availability and up-time commitment as defined in the Service Level Policy attached hereto as Exhibit B is not met for two (2) consecutive months or the Solution is not available during the peak hours for a continuous period of eight (8) or more hours. CLIENT must provide such termination notice in writing within 30 days of such failure by HELLOHEALTH to meet the Service Level Commitments described in Exhibit B, with information reflecting the nature of the alleged failure in sufficient detail.
Effect of Termination. Upon any expiration or termination:
1. HELLOHEALTH shall provide to CLIENT all of CLIENT’s data in a commercially reasonable and legally compliant format. Patient demographics shall be provided at no cost. For any custom nonstandard data extract, HELLOHEALTH may charge usual and customary data extraction charges of$2,000.00 (subject to the price increases herein), or otherwise to the extent allowable under applicable law. This extraction shall be within the purview of HELLOHEALTH’s current data format.
2. Upon termination, access to the Solution shall be terminated. All unpaid fees shall be due and payable in full immediately. Until CLIENT data is provided to CLIENT, HELLOHEALTH shall not suspend the ability to access patient information.
3. HELLOHEALTH shall maintain a copy of CLIENT’s data in accordance with and for the period of time required by applicable law. CLIENT retains responsibility for the legal retention requirements of CLIENT data, individual access to health information, and patient forms related to data access that apply to CLIENT under applicable law.
4. At CLIENT’s request and for a period of time designated by CLIENT (the “Transition Period”), HELLOHEALTH may provide a limited subscription to the Solution (”READ-ONLY SUBSCRIPTION”). Such READ-ONLY SUBSCRIPTION shall amount to $100 or 25% of the average of last three months invoice whichever is higher. At no cost, CLIENT shall have the full discretion to opt for a full data file of the data in the standard format. CLIENT acknowledges that READ-ONLY SUBSCRIPTION enables the CLIENT to utilize the system to view records, but CLIENT cannot create any new records. CLIENT can discontinue the Transition Period with 30 days’ written notice. HELLOHEALTH will cooperate and assist CLIENT in the orderly transition and conversion of CLIENT’s data as expressed in Section 4(f)(i) above to another vendor by providing CLIENT with the following during the Transition Period on the same terms as set forth in this Agreement, thereby extending the term through the end of the Transition Period: (A) the Subscription to continue to use the Solution; and (B) any additional services as needed. For CLIENT’s with Portalconnect paid subscribers, CLIENT is required to maintain the read-only subscription to until the end of all patients Portalconnect’s paid subscriptions expire. Further, no refunds shall be made for Portalconnect existing paid subscribers for early termination.
Early Termination of Subscription. For any early termination other than for cause by CLIENT as specified in Section 11(e) prior to the end of the term of this Agreement, CLIENT shall be responsible for 75% of the remaining months of the contract calculated as an average of the last three months payments, including and any minimum duration for modules activated during the Term.
Survival. Those rights and obligations that accrued prior to the effective date of termination and those obligations that by their nature or express terms continue after the effective date of termination shall survive any termination of this Agreement.

12. ONLINE TRAINING.

Training to use the Solution is available through online help, online tutorials and webinars (recorded and live). Additional training, if required are available at HELLOHEALTH’s current hourly rate. HELLOHEALTH and/or its LOCAL SERVICE PROVIDER shall provide training as set forth in the Exhibit A to CLIENT’s Authorized Users regarding the use and implementation of the Solution. The parties shall mutually agree upon the logistics of such session(s) including the date, location and number of attendees. CLIENT may request any additional paid training subject to HELLOHEALTH’s availability.

13. WARRANTY, DISCLAIMER AND REMEDIES.

Representations and Warranties. HELLOHEALTH represents and warrants to CLIENT that: (i) HELLOHEALTH has the right and authority to grant the rights described in this Agreement; and (ii) it will perform its obligations hereunder in a professional and workman like manner consistent with the industry standards.
Intellectual Property. HELLOHEALTH will indemnify and hold CLIENT harmless from and against any claim by third parties pertaining to the infringement of U.S. copyrights, trademarks or patents arising out of CLIENT’s use of any of the HELLOHEALTH’s PRODUCTS as authorized hereunder, provided that the PRODUCTS have not been altered, revised or modified by the CLIENT in a manner that causes the alleged infringement, and further provided that:
1. CLIENT promptly notifies HELLOHEALTH in writing of such claim;
2. HELLOHEALTH will have sole control of the defense of any action on such claim and of all negotiations for its settlement or compromise;
3. CLIENT agrees to cooperate with HELLOHEALTH in every reasonable way to facilitate the settlement or defense of such claim; and
4. should such HELLOHEALTH’s Products become or, in HELLOHEALTH’s opinion, be likely to become, the subject of an infringement claim, CLIENT will permit HELLOHEALTH, at HELLOHEALTH’s expense, to:
  1. procure for CLIENT the right to continue using such HELLOHEALTH’s PRODUCTS, or
  2. replace or modify the same to become functionally equivalent yet non-infringing, or
  3. upon the failure of (1) and (2) above, terminate, without penalty, CLIENT’s use of the affected HELLOHEALTH Products, in which event HELLOHEALTH will refund to CLIENT on a pro-rata basis any pre-paid amounts related thereto, and such amount shall not exceed more than 30 days of pre-paid subscription. In the event of such termination, HELLOHEALTH will provide access to CLIENT data in accordance with this Agreement.
Disclaimer. Except for the limited warranty set forth in Section 13(a) above, the Solution services and all other services are provided to CLIENT on an “AS IS” basis and without any additional warranty of any kind. NEITHER HELLOHEALTH NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOLUTION, ANY DELAY OR FAILURE OF THE INTERNET, AND HELLOHEALTH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Further, CLIENT expressly recognizes that HELLOHEALTH does not warrant that the Software will meet all of CLIENT’s requirements, that the use of the Software will be uninterrupted or error-free, that patches, updates, or workarounds will be provided, or that errors will be corrected in Software updates, according to the schedule, or in every case. CLIENT agrees that access to the Internet cannot be guaranteed and is outside the direct control of HELLOHEALTH and that CLIENT’s inability to access the Internet, through no fault of HELLOHEALTH, shall in no event relieve CLIENT of its payment obligations hereunder. CLIENT agrees that its sole remedy with respect to any claims in connection with CLIENT’s or its Authorized Users’ use of the Solution, including use of the Software, shall be with HELLOHEALTH and not its licensors. CLIENT further agrees that unless expressly agreed to in writing, there are no intended third party beneficiaries to this Agreement.
Clinical and Non-Clinical Content Disclaimer. Clinical and Non-Clinical information contained on HELLOHEALTH’s web-based solutions and website is general in nature and must not be substituted for, or be used instead of, the independent judgment of a licensed health care professional and is only designed to support, not replace, the relationship that exists between a patient and his/her health care practitioner, and any and all information does not constitute the practice of medicine or any other health care profession. Nothing in the HELLOHEALTH’s Solution or website is intended as a recommendation or endorsement of any specific tests, drugs, PRODUCTS, procedures, health care providers, opinions, or other information that may be mentioned therein. Any reliance on any information appearing on HELLOHEALTH’s Solution or website or provided by HELLOHEALTH’s personnel, others appearing on the site at the invitation of the “Website”, and/or other visitors to the site or any third-party link from the site is solely at CLIENT’s own risk. CLIENT retains sole responsibility for all clinical decision making and record keeping.
Exclusive Remedies. For any breach of the warranties contained in this Section 13, CLIENT’s exclusive remedy, and HELLOHEALTH’s entire liability, shall be the correction of the cause of the breach of such warranty. If cure is not reasonably possible, then the limitations in Section 14 shall apply. Parties agree for the considerations exchanges between parties under this Agreement, this is a reasonable allocation of risk. Any error not reported to HELLOHEALTH by CLIENT within 30 days of its discovery will be deemed waived and accepted by the CLIENT.
Other Disclaimers. CLIENT understands and CLIENT expressly recognizes that:
1. Electronic claims, Electronic Remittance Advice and Eligibility Verification are processed by third parties (Emdeon or other Clearinghouses). HELLOHEALTH may connect CLIENT with such third parties as part of the Electronic Claim services. HELLOHEALTH relies on these third parties for applicable compliance requirements, accuracy and completeness of the services provided by these third parties.
2. HELLOHEALTH provides drug database, interaction, eprescription to drugs including EPCS, formularies and bidirectional connectivity to pharmacies through partnership with Dr. First, Wolters Kluwer, Sure Scripts combinedly referred to as (“eRx Partners”) eRx Partners requires CLIENT to accept the online agreement for their portion of the service in accordance with the NewCrop Subscription Agreement. The usage of NewCrop service is subject to CLIENT’s acceptance of their Subscription Agreement. CLIENT represents and warrants that it will accept and comply with the eRx Partners Subscription Agreement and any other third-party software or product terms of use and license agreements applicable under this Agreement.
3. HELLOHEALTH encourages CLIENT to setup a secure email account to download emails and/or electronic faxes on a secure machine and delete it from the email server following receipt. HELLOHEALTH strongly discourages use of FREE email servers such as Yahoo, Google, MSN or Hotmail and any email services that scan through emails and its contents for marketing purposes; this could potentially compromise PHI or other private and confidential information. CLIENT retains sole and exclusive responsibility to comply with applicable state and federal privacy laws with respect to CLIENT’s use of email in relation to this Agreement.
4. As part of providing Services to the CLIENT, HELLOHEALTH may be required to log in to the CLIENT’s account for the purpose of providing services to CLIENT as specified in this Agreement. HELLOHEALTH shall comply with all privacy, confidentiality, and security compliance requirements when logging in for such purposes.
5. CLIENT acknowledges that optional electronic fax service, email services and other services are provided by third party service providers. In no event will HELLOHEALTH be liable for any claims or damages related to CLIENT’s use of such third-party service providers.

14. LIMITATION OF LIABILITY.

IN NO EVENT WILL HELLOHEALTH, ITS LICENSORS, SERVICE PROVIDERS AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, AGENTS AND REPRESENTATIVES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, LOST BUSINESS AND LOSS OF DATA, DATA BREACHES, OR COMINGLING OR CORRUPTION OF DATA OR LOSS OF GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE USE OF THE SOLUTION, OR ACCOMPANYING MATERIALS AND/OR SERVICES, ACCESS TO OR FAILURE TO ACCESS THE INTERNET OR OTHER INTERRUPTIONS OR OTHER PROGRAM RELATED ANOMALY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER IN ACTION, IN CONTRACT OR TORT. THIS LIMITATION WILL APPLY EVEN IF HELLOHEALTH OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FURTHER, IN NO EVENT WILL HELLOHEALTH’S OR ITS LICENSORS’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY CLIENT FOR THE SOLUTION OR SOFTWARE GIVING RISE TO THE LIABILITY DURING THE 3-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. UNDER THE PRICING AND OTHER TERMS AND CONDITIONS, THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SPECIFIED HEREIN SECTION 13 REPRESENTS A REASONABLE ALLOCATION OF RISK.
Limitation of Liability of Interface Connectivity with Third Parties. Notwithstanding any other provisions of this Agreement, HELLOHEALTH has no liability under this Agreement, including the Business Associate Agreement, for any disclosure of Protected Health Information (“PHI”) made by means of access through HELLOHEALTH interfaces by or on behalf of the CLIENT or by means of access by any third party to the extent such third party obtained access to the interface as a result of the intentional disclosure by the CLIENT, gross negligence of CLIENT, or CLIENT’s failure to maintain appropriate access controls, access management, access termination procedures or any other applicable HIPAA requirements. All Interface requests made by the CLIENT or by a third party on behalf of the CLIENT shall be considered intentional disclosure.
Limitation of Liability on Online Portal and KIOSK and Patient Messaging. HELLOHEALTH provides a secure online portal module that provides patient messaging and other online tools for patients to interact with the CLIENT. Notwithstanding any other provisions of this Agreement, HELLOHEALTH has no liability under this Agreement, including the Business Associate Agreement, for any disclosure of Protected Health Information (“PHI”) made by means of access or transmission of PHI in relation to the portal.
Class Action Waiver. The parties agree that any litigation or arbitration arising out of or relating to this Agreement may only be maintained on an individual basis and any right to pursue any claims arising out of or related to this Agreement may not be consolidated into more than one party’s individual claims or be raised on behalf of a class of the parties. This limitation shall apply without limitation to both to arbitrations and court proceedings.
Wavier of Jury Trial. Each party irrevocably and unconditionally waives any and all rights to a trial by jury in any legal action relating to this Agreement, including any and all exhibits, attachments, and amendments hereto.

15. FORCE MAJEURE.

In no event shall HELLOHEALTH be liable to CLIENT or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond HELLOHEALTH’s reasonable control, including but not limited to acts of God, flood, pandemic, epidemic, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

16. INDEMNIFICATION.

CLIENT shall indemnify, defend and hold HELLOHEALTH, its officers, directors, employees, and licensees harmless from and against any and all liability, damage, loss, or expense, including reasonable attorneys’ fees arising from any third party claim, demand, action or proceeding based upon CLIENT’s or an Authorized User’s breach of this Agreement, use of the Solution in a manner not expressly authorized by this Agreement or in a manner contrary to applicable laws, or incurred in the settlement or avoidance of any such claim.

17. PUBLICATIONS.

HELLOHEALTH may issue a press release announcing the relationship contemplated by this Agreement. HELLOHEALTH may include quotes from CLIENT in HELLOHEALTH’s press releases with a consent from the CLIENT. Further, during the term of this Agreement, HELLOHEALTH may use CLIENT’s name and logo in press releases, marketing materials, financial reports and prospectuses solely to indicate that CLIENT is a client of HELLOHEALTH.

18. MISCELLANEOUS.

Modification. Except in the case of a Sales order or as an addendum or Exhibit A specifically amending this Agreement, the terms, provisions, or conditions of any purchase order or other business form or written authorization used by CLIENT will have no effect of the rights, duties, or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of HELLOHEALTH to object to those terms, provisions, or conditions. Unless otherwise provided for in this Agreement, this Agreement may be amended, supplemented or modified in whole or in part at any time by HELLOHEALTH with 30 days email notification, written notice published in the Software, and/or in HELLOHEALTH’s sole discretion by executing an addendum to this Agreement.
Waiver. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof. No failure of either party to pursue any remedy resulting from a breach in this Agreement by the other party shall be construed as a waiver of that breach, nor as a waiver of any subsequent or other breach unless such waiver is signed and in writing.
Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable or invalid, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns. Both parties agree to notify the other party of any assignment or delegation of this Agreement. Any attempted assignment in violation of this Section 18(c) shall be null and void.
Governing Laws and Venue. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the state of Florida, and the venue for any dispute shall be in the County of Hillsborough, Florida, without regards to conflicts of laws.
Dispute Resolution and Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in the County of Hillsborough, Florida, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own expenses in connection with the arbitration. It is the intention of the parties that this Agreement shall be construed and interpreted in a fair and equitable manner based upon the facts and circumstances of the parties, taking into account the present intention of the parties to have a fair and equitable agreement under the terms and conditions set forth in this Agreement. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Agreement shall bar either party from obtaining injunctive relief through the Superior Court or Federal Courts of the same jurisdiction. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.
No Construction against Drafter. This Agreement is not to be construed against the drafting party.
Notices. Any notice required or permitted to be given shall be delivered by hand, email, by overnight courier, by fax with confirming letter mailed under the conditions for mailed notice, or by registered or certified mail, postage paid, return receipt requested, to the address of the other party first set forth above. Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. CLIENT affirms that the email address and contact information provided for receiving such notices is accurate and authorized for receiving such notices.
Relationship between the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Entire Agreement. The parties agree that this Agreement constitutes the complete and exclusive understanding and agreement of the parties relating to the subject matter hereof and supersedes all prior understandings, proposals, agreements, negotiations, and discussions between the parties, whether written or oral.
Electronic Signature. The parties agree to execute this Agreement electronically. By fixing an electronic mark and/or accepting the terms of this Agreement electronically (either by way of executing below or otherwise agreeing to the terms of this Agreement on an Order From), CLIENT understands that this Agreement shall be given the same legal and binding effect if executed electronically as if it were signed manually in paper form by CLIENT and HELLOHEALTH. The individual signing below represents that they have the full legal authority to bind the CLIENT to the terms of this Software Subscription Agreement, Business Associate Agreement, and Service Level Agreement.

Hello Health, LLC

Signature: _________________________

Name: ____________________________

Title: ____________________________

Date: _____________________________

CLIENT

Signature: __________________________

Name: _____________________________

Title: _____________________________

Client Name: ________________________

Date: __________________________ Please send a copy of the fully executed agreement to Hello Health, Inc. legal@hellohealth.com

EXHIBIT A Order Form or Pricing Proposal or any other form prior agreed pricing.

EXHIBIT B Service Level Agreement. As published on www.hellohealth.com or Attached here to as Exhibit B.