The below terms comprise additional terms and conditions incorporated into and made part of the Software as a Service Agreement between Buffalo Intelligent Technology Systems, LLC and the Client. Capitalized terms used in the Agreement but not defined herein shall have the meanings set forth on Schedule 1.

1. SERVICES
   1.1 Service and System Control.
   (a) Founders Software has and will retain sole control over the operation, provision, maintenance, and management of the Founders Software Materials.

   (b) Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Founders Software Materials by any person by or through the Client Systems or any other means controlled by Client, including, without limitation, any: (i) information, instructions, or materials provided by any of them to the Services or Founders Software; (ii) results obtained from any use of the Services or Founders Software Materials; and (iii) conclusions, decisions, or actions based on such use.
   
   1.2 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or the Founders Software Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services and the Founders Software Materials are and will remain with Founders Software.
   
   1.3 Changes. Founders Software reserves the right, in its sole discretion, to make any changes to the Services and Founders Software Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Founders Software’s services to its clients; (ii) the competitive strength of or market for Founder Software’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes; provided, however, no requested changes will be effective unless and until memorialized in a written change order signed by both parties.
   
   1.4 Software Guidelines. The rights granted to Client in this Agreement are subject to all of the following agreements and restrictions:
   (a) Client shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, use on a timesharing basis, use or permit others to use on a service bureau basis, disclose or otherwise commercially exploit or make the Service available to any third party (including, without limitation, to any affiliate of Client).

   (b) Client shall use the Service only in connection with the submission of Client’s Claims to payors and for no other purpose whatsoever. Client acknowledges and agrees that Founders Software shall not prepare or submit any reimbursement claims for, or on behalf of, Client.

   (c) Client shall not, nor shall it attempt or permit any third party to, modify, make derivative works of, disassemble, reverse compile, reverse engineer or derive or determine the source code of any part of the Software, the Documentation, the API (defined below), or Founders Software’s computer hardware, software, configuration or system through which Founders Software provides the Service (collectively, the “Host System”), or access or use the Service or Host System in order to build a similar or competitive product or service. Client understands and agrees that the Host System contains valuable, confidential, proprietary trade secrets of great value to Founders Software, the disclosure, loss or circumvention of which would cause Founders Software great and irreparable harm.
   
   (d) Other than Client Data, or as otherwise expressly stated herein, no data or part of the Software or the Host System may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, without limitation, electronic, electro-magnetic, mechanical, photocopying, recording, residual recollection, or other means.

   (e) To the fullest extent permitted by applicable law, Client shall not disclose any review or analysis of the Software or the Host System to any third party, including, without limitation, the results of any tests, without Founders Software prior written approval.

   (f) Client will ensure that any use of the Software or the Host System by Client is in accordance with the terms of this Agreement. Further, Client shall maintain the security of all user names and passwords used to access the Service. Client shall allow the use of the Service and Host System only by Client’s employees and, if authorized in writing by Founders Software Client’s independent contractors with whom Client has entered into written agreements with respect to such independent contractors’ use of the Host System with terms no less protective of Founders Software’s rights than the terms of this Agreement. Client acknowledges and agrees that Client is responsible for all access to and use of the Software and Host System by users using Client’s user name, password and/or other authentication credentials. Client agrees to prevent unauthorized third parties from accessing or using the Software and Host System using Client’s user name, password and/or other authentication credentials.

   (g) Client is solely responsible for obtaining and maintaining the necessary software, hardware, internet connectivity, and all other systems and devices in order to access and use the Host System. System requirements necessary for proper function can be found at https://routingbox.com/system-requirements/, and are hereby incorporated into this Agreement by reference.
   
   (h) Client may not disseminate or transmit any material using the Host System in any way that is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way.

   (i) Client may not disseminate or transmit any material that otherwise may: (i) constitute a criminal offense; (ii) give rise to civil liability; or (iii) violate applicable law (including, without limitation, the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), rule or regulation. Client shall, at all times, comply with all applicable law. The parties shall comply with the terms and conditions of the HIPAA business associate agreement which can be found at https://founderssoftware.com/hipaa-baa/and is hereby incorporated into this Agreement by reference.
   
   (j) Client shall not remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service or Founders Software Materials, including any copy thereof.

   (k) Client shall not access or use the Services or Founders Software Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law.

   (l) This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software, Documentation, Services, or Host System.

2. SUSPENSION
   
   2.1 Payment Failure Suspension. If any monthly payments which are billed by Founders Software in arrears are not paid within forty-nine (49) days after the date of the applicable invoice, then, in addition to late fees set forth in this Agreement and all other remedies available to Founders Software under this Agreement and under law, Founders Software shall have the right to immediately suspend Client’s use of the Service until payment arrangements satisfactory to Founders Software have been made. This Section does not limit any of Founders Software’s other rights or remedies, whether at law, in equity, or under this Agreement.
   
   2.2 Default Suspension. Founders Software may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Client’s or any other person’s access to or use of all or any part of the Services or Founders Software Materials, without incurring any resulting obligation or liability, if: (a) Founders Software receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Founders Software to do so; or (b) Founders Software believes, in its sole discretion, that: (i) Client or any other person has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Founders Software’s other rights or remedies, whether at law, in equity, or under this Agreement.
   
   2.3 Reconnection Fees. Founders Software reserves the right to impose a one-hundred fifty dollar ($150) reconnection fee in the event Client is suspended and thereafter requests access to the Service.

3. INTELLECTUAL PROPERTY RIGHTS
   3.1 Ownership of Founders Software Materials. Founders Software (or Founders Software’s third party licensors, to the extent applicable) is, and shall at all times remain, the sole and exclusive owner of all right, title, and interest in and to the Software, Documentation, the API, the Services, and Host System, including, without limitation, Intellectual Property Rights.
   
   3.2 Ownership of Custom Modifications. Founders Software is, and shall at all times remain, the sole and exclusive owner of all right, title, and interest in and to all Custom Modifications, all developments made in connection with the Services, all improvements upon and derivatives of the Software, Documentation, Services, or Host System, and all other deliverables supplied by Founders Software under this Agreement, whether developed independently of the Services or in connection with the Services. To the extent that Founders Software is not automatically considered the owner of any of the foregoing, Client agrees to assign and does hereby assign to Founders Software all right, title, and interest in and to all such materials, including, without limitation, all Intellectual Property Rights, and agrees to execute, or cause to be executed, any documents Founders Software deems necessary to effect such assignment.
   
   3.3 No Implied Rights. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement shall be construed as granting Client, or any third party, any right, title, or interest in or to the Software, Documentation, Services, Host System, Custom Modifications, training materials, methods, or any other materials provided by Founders Software to Client, whether by implication, estoppel, or otherwise.

4. PROPRIETARY RIGHTS; CLIENT DATA
   4.1 Acknowledgment of Proprietary Materials; Limitations on Use. Client acknowledges that the Host System, including, without limitation, the Software, Documentation, and API are protected under the copyright laws of the United States of America and embody valuable, confidential and secret information proprietary to Founders Software the development of which required the expenditure of considerable time and money by Founders Software Client shall treat and shall require users to treat the Host System, including, without limitation, the Software and Documentation, in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy or disclose the same for any purpose that is not specifically authorized under this Agreement.
   
   4.2 Communication of the Terms and Restrictions of this Agreement. Client agrees to communicate the terms and restrictions contained in this Agreement to and ensure compliance with such terms and restrictions through written agreement by, all persons under its employment, direction, or control who have access to the Service, in whole or in part.
   
   4.3 Secure Handling. Client shall require that all Documentation delivered to or downloaded by Client be kept on Client’s premises or secure off‑site backup premises in a secure manner so as to preclude unauthorized persons from having access thereto, and Client shall permit such Documentation to be accessed only by Client’s employees with a legitimate need for the purposes of this Agreement.
   
   4.4 Copyright and Trademark Notices; Proprietary Legends. Client shall not permit any personnel of Client to remove any copyright or trademark notice or proprietary or other legend or restrictive notice contained or included in any Documentation provided by Founders Software and Client shall not permit Client personnel to reproduce or copy any such material except as specifically authorized hereunder.
   
   4.5 Client’s Obligations Respecting Access. As much as possible, Client shall limit use of and access to the Services and Documentation to such employees of Client as are directly involved in the use thereof by Client, and Client shall (a) disclose such information only to employees of Client who Client reasonably believes will not violate the provisions of this Agreement and (b) prevent all of Client’s employees from having access to any such information that is not required in the performance of their duties for Client. Client shall, if and as requested by Founders Software, provide Founders Software with written notice of all employees or consultants of Client who have been accorded access to the Services or Documentation in the course of their employment by Client.
   
   4.6 Client Data.
   (a) Client may provide Client Data to Founders Software in connection with this Agreement. Client Data is, and shall at all times remain, the sole and exclusive property of Client and all right, title, and interest in the same is reserved by Client.

   (b) Founders Software Use of Client Data. Client hereby grants to Founders Software a limited, royalty-free, fully-paid up, non-exclusive, sublicensable license to collect, process, store, generate, and display Client Data as necessary in providing of the Service.

   (c) Extraction of Client Data. To the extent reasonably available during the Term, Founders Software shall provide Client, at a cost of $500 per occurrence, an extract of the Client Data within a reasonable time after Client’s written request, in a manner determined by Founders Software based upon the size of the Client Data extract. Following termination, expiration, or suspension of at least ninety (90) days of this Agreement, Founders Software will delete all Client Data ninety (90) days from the date of termination, expiration, or the ninetieth (90^th) day of suspension. During such ninety (90) day period, Client may request an extract of its Client Data for a fee of $1,000 (“Extraction Fee”). Prior to any extract of Client Data, Client must be current on all other fees owed to Founders Software, or pay all fees then due and owing to Founders Software (in addition to the Extraction Fee). The Extraction Fee and any other fees owed to Founders Software must be paid within two (2) days of Client’s extraction request. If Client fails to timely pay, Client will be required to submit a new extraction request.
   
   (d) Backup and Recovery of Client Data. As a part of the Services, Founders Software is responsible for maintaining a backup of Client Data and for an orderly and timely recovery of such data in the event that the Service may be interrupted.

   (e) Loss of Client Data. Client acknowledges that Founders Software is not responsible for any electronic communications or Client Data which are lost, altered, intercepted, or stored during the transmission of such electronic communications or Client Data across networks not owned or operated by Founders Software.

   (f) Accuracy of Client Data. Client represents and warrants that all Client Data provided by Client to Founders Software through any medium and in any form, shall be complete, true and accurate. During the Term, Client shall immediately supplement or correct any Client Data in order to comply with the representations set forth in this subsection, and Client’s other obligations in this Agreement and to ensure the accuracy of the Client Data. Client acknowledges and agrees that Founders Software may rely on the Client Data as submitted by Client without further verification or inquiry.
   
   (g) Application Programming Interfaces. Client acknowledges, that in connection with the Services, Client may utilize certain application programming interfaces and there associated tools and documentation (“API”) owned by Founders Software. Pursuant to the terms set forth herein, Founders Software granted Client a limited, revocable, non-sublicensable, non-exclusive license to utilize the API, solely in connection with Client’s use of the Services. Client’s use of the API and display of any content accessible therefrom must comply with the terms of this Agreement, the technical documentation (including, as applicable, the Documentation), usage guidelines call volume limits, and other documents provided by or posted by Founders Software from time to time.
   
   4.7 Third- Party Software. Through the Services, Client may be able to access and or provide access to services provided by third-parties (“Third-Party Services”) which are not controlled by Founders Software. These Third-Party Services are provided subject to the terms any license or agreement required by the applicable third-party. Moreover, Founders Software has no control over, and shall not be liable for any failure of the Third-Party Services to perform as contemplated. Founders Software makes no representation or warranty as to such Third-Party Services. In the event that payment processing for Client’s customers is included within the Third-Party Services, Client acknowledges that Founders Software is not responsible for the processing, collection, or verification of any payments owed by Client’s customers to Client, and that Client is solely responsible for collection of all such payments. For coordinating the Third-Party Services, Founders shall be permitted to collect a fee or otherwise charge Client a passthrough cost for Founders Software’s coordination and integration of such Third-Party Services. Such fees may be automatically collected by Founders Software, or may be invoiced in accordance with the term of this Agreement.

5. WARRANTIES; SERVICE DEFECT CORRECTION; DISCLAIMER; LIMITATION OF LIABILITY
   
   5.1 Limited Warranty of Conformity. Founders Software warrants, for the benefit only of Client, that from the Effective Date to the termination of this Agreement that the Service shall conform in all material respects to the specifications contained in any Documentation (except for modifications, if any, made by Client or by Founders Software at the request of Client).
   
   5.2 Limitation on Service Defect Correction. For any nonconformity constituting a Service Defect in the Service for which Founders Software is responsible, Client’s sole and exclusive remedy for such Service Defect is for Founders Software to use commercially reasonable efforts to provide Service Defect Corrections with respect to such Service Defect; provided, however, Founders Software shall not be obligated to correct, cure, or otherwise remedy any Service Defect in the Service resulting from any (a) modification of the Software by Client or any third party acting on Client’s behalf, (b) misuse or damage of the Software other than by personnel of Founders Software (c) accidents, fire, theft, neglect, abuse, acts of God or other such casualties, or any other external conditions or events which directly or indirectly result in a failure or malfunction or otherwise adversely affect the operation of the Service, or (d) failure of Client to notify Founders Software in writing of the existence and nature of such nonconformity or Service Defect promptly upon its discovery. THE REMEDY PROVIDED IN THIS SECTION 5.2 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 5.1, TO THE EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH LIMITATION CAUSES THIS WARRANTY OR ITS REMEDY TO FAIL OF THEIR ESSENTIAL PURPOSES.
   
   5.3 Mutual Representations and Warranties. Each of Client and Founders Software represent and warrant that:
   
   (a) it is a business duly organized, validly existing, and in good standing under the laws of its state of organization;
   (b) it has all requisite power and authority to execute, deliver, and perform its obligations under this Agreement; and
   (c) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms.
   
   5.4 Disclaimer. THE WARRANTIES IN SECTIONS 5.1 AND 5.3 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES FROM FOUNDERS SOFTWARE. EXCEPT AS EXPRESSLY STATED IN SECTIONS 5.1 AND 5.3 OF THIS AGREEMENT, FOUNDERS SOFTWARE MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO THE SERVICES, SOFTWARE, DOCUMENTATION, OR THE API, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES (EXPRESS OR IMPLIED) ARE EXPRESSLY DISCLAIMED BY FOUNDERS SOFTWARE. FOUNDERS SOFTWARE DOES NOT GUARANTEE THAT THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT FOUNDERS SOFTWARE WILL CORRECT ALL ERRORS. FOUNDERS SOFTWARE MAKES NO REPRESENTATION OR WARRANTY AS TO THIRD-PARTY SERVICES OR THIRD-PARTY SOFTWARE. CLIENT ACKNOWLEDGES THAT FOUNDERS SOFTWARE WILL NOT BE LIABLE FOR ANY ERRORS IN DATA ACCESSED THROUGH THE SERVICES AND THAT CLIENT IS RESPONSIBLE FOR REVIEWING, CONFIRMING, AND VALIDATING ALL DATA, REPORTS, AND FORMS THAT MAY BE GENERATED BY THE SERVICES. FOUNDERS SOFTWARE IS NOT RESPONSIBLE FOR DATA LOSS. IF THE SERVICES ARE USED IN CONNECTION WITH ANY MEDICAL TREATMENT OR SERVICES, OR TIMEKEEPING SERVICES, CLIENT AGREES TO ACCEPT ALL RESPONSIBILITY IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, RESPONSIBILITY FOR INJURY, DEATH, DAMAGE, AND/OR LOSS RELATED TO TREATMENT OR SERVICES.
   
   5.5 Limitation on Liability.
   (a) NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT SHALL FOUNDERS SOFTWARE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, OR DIMINUTION OF VALUE, ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH ANY USE OR OF THE SERVICES BY CLIENT, INACCURACY OF DATA OR INFORMATION PROVIDED BY CLIENT TO FOUNDERS SOFTWARE OR IN CONNECTION WITH THE SERVICES, CLIENT BILLING ERROR, PAYROLL PROCESSING, TIMEKEEPING, COMBINATION OR UTILIZATION OF THE SERVICES WITH ANY OTHER SOFTWARE, OR ANY BREACH OF THIS AGREEMENT BY FOUNDERS SOFTWARE REGARDLESS OF: (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT FOUNDERS SOFTWARE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

   (b) MAXIMUM LIABILITY. IN NO EVENT SHALL FOUNDERS SOFTWARE’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH THE AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PROCEEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.

   (c) ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE INFORMATION OR DATA PROVIDED IN CONNECTION WITH THE SERVICES AND THE API, BILLING, PAYROLL, OR OTHER SERVICES PERFORMED BY THE CLIENT, OR THE RESULTS OBTAINED BY THE USE OF THE SERVICES, OR THE THIRD-PARTY SERVICES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY FOUNDERS SOFTWARE, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE SERVICES

6. INDEMNIFICATION
   6.1 Indemnification of Founders Software by Client. To the fullest extent permitted by law, Client shall indemnify, defend, and hold Founders Software, its affiliates, and their respective officers, directors, employees, and agents harmless from and against any and all claims, actions, liabilities, losses, damages, expenses, and costs (including, without limitation, reasonable attorneys’ fees with interest and disbursements), directly or indirectly, arising out of, related to, resulting from, or in connection with, in whole or in part, (a) Client’s use of the Services other than in accordance with this Agreement; (b) Client’s modification of the Services or use of the Services that does not comply with the terms of this Agreement, if any such modifications or unauthorized use infringes upon any third party’s intellectual property; (c) the inaccuracy of any information or data provided by Client, including, without limitation, any Client Data, (d) Client billing errors or omissions, (e) Client’s negligence or willful misconduct; (f) Client’s breach of this Agreement, including, without limitation, a breach or inaccuracy of any representation or warranty made by Client; or (g) Client’s violation of law. In addition, Client will be responsible for all costs and expenses, including, without limitation, reasonable attorneys’ fees with interest and disbursements, incurred by Founders Software in enforcing any term or condition of this Agreement and Client will indemnify and hold harmless and promptly reimburse Founders Software for such costs and expenses. 
   
   6.2 Defense of Client by Founders Software. Founders Software agrees to defend, at its own expense, any action against Client brought by a third party to the extent that the action is based on a claim that the Services directly infringe any U.S. intellectual property right, and Founders Software will pay any costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Founders Software’s obligations under the preceding paragraph with respect to a particular action are conditioned on (a) Client promptly notifying Founders Software of the action in writing, (b) Client giving sole control of the defense of the action to Founders Software (including any related settlement negotiations), and (c) Client cooperating with Founders Software in the defense of the action. Notwithstanding the foregoing, Founders Software will have no obligation or liability for any infringement action that is based on (i) use of the Services for an unintended purpose, (ii) use of the Services in combination with other products, (iii) any modification of the Services made by a party other than Founders Software, (iv) any failure of Client to perform its obligations in its ordinary course of business, including, without limitation, any obligations owed to Client’s employees, whether in connection with or separate from Client’s receipt or use of the Services. This section sets forth Founders Software’s entire liability and Client’s sole and exclusive remedy for infringement actions.

7. HOST SYSTEM SUPPORT
   7.1 Support and Maintenance Services. During the Term, Founders Software shall provide product support services, as set forth in Exhibit A, to Client in the use and operation of the Host System and Service. Support and maintenance services will be provided by appropriately experienced and trained personnel of Founders Software. Founders Software shall not be responsible for correcting Service Defects in any version of the Software other than the latest Updates of the Software. Founders Software may provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Service to ensure the functionality of the Service, as described in the Documentation, is available to users.
   
   7.2 Training Services. Founders Software shall provide Training Services, if any, as defined in Exhibit B and as limited by this Agreement. If Client cancels a training session with less than forty-eight (48) hours’ notice or does not attend a scheduled session, an additional fee may apply to any rescheduled training session.
   
   7.3 Audit Rights of Founders Software. Upon notice, Founders Software shall have the right to audit Client’s use of the Services and Documentation to confirm compliance with this Agreement. Client shall fully cooperate with all such audits which shall include, without limitation, providing full access to Client’s facilities and personnel. If Founders Software determines that Client has violated this Agreement, then, in addition to any other rights and remedies available to Founders Software as a matter of law or equity, Client shall pay for all costs and expenses incurred by Founders Software in connection with the audit. No more than once annually, Founders Software shall have the right to request from Client, and Client shall promptly provide to Founders Software upon such request, written certification from Client, signed by an officer of Client, certifying Client’s compliance with this Agreement.
   
   7.4 Additional Charges and Expenses.  All Fees will be increased by the greater of CPI or 3.9% each year on the anniversary of the Agreement. CPI shall be defined as the Consumer Price Index CUUR0000SA0  or the nearest available if that index is discontinued and found at BLS.gov.  In the event Founders Software provides any support and maintenance services beyond those set forth in Section 7.1, Founders Software shall invoice Client for, and Client shall pay, such additional support and maintenance services in accordance with Exhibit A. Founders Software shall also invoice Client for, and Client shall pay, all expenses incurred as a result of additional support and maintenance services, including, without limitation, mailing expenses of any kind, telephone and facsimile calls, and reasonable travel expenses, including, without limitation, airfare, meals, lodging, rental cars, parking fees, etc. Additionally, if a mutually agreed training session for the Software is scheduled, and Client subsequently misses such session without prior notice of at least two (2) hours, Founders Software reserves the right to charge a one-hundred fifty dollar ($150) no-show fee for its time lost due to the no-show. Client shall pay Founders Software all such amounts upon receipt of any such invoice. Travel time to and from a Client site will be billed. Any amount not paid within thirty (30) days after date of the invoice shall bear interest at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less. 
   
   7.5 Hosting Infrastructure, Maintenance, Updates. Founders Software is committed to providing an industry-standard, secure, properly performing available hosted infrastructure. The Host System will reside on computer hardware and software systems which will be located in one or more secure, professionally managed third party data centers. The Host System is monitored with notification and alerts to our support team to ensure both availability and performance. From time to time, scheduled system maintenance may be required. If practicable, scheduled maintenance will typically take place over a weekend and last not more than 1-2 hours. If practicable, scheduled maintenance will be planned to minimize the impact to the Service. Founders Software is not responsible for other infrastructure issues that do not directly affect availability of the Service, but that prohibit users from using the Services (like an outage of Client corporate network or internet connectivity). Updates do not typically require system downtime or cause any impact to users. However, to minimize any impact to users, some updates will be scheduled to occur outside of normal peak hours. If practicable, Founders Software will endeavor to provide no less than fifteen (15) calendar day’s prior written notice to Client of all non-emergency maintenance to be performed on the Host System, such written notice including a description of all maintenance to be performed. For emergency maintenance, Founders Software shall provide as much prior notice as practicable to Client and shall provide a description of all maintenance performed either prior to or after such emergency maintenance.

8. EFFECT OF TERMINATION; LIQUIDATED DAMAGES
   8.1 Effect of Termination. Upon termination or expiration of this Agreement: (a) Client shall immediately return to Founders Software all Documentation and Founders Software shall be permitted to immediately deactivate Client’s access to, and use of, the Services; (b) within a reasonable period of time after the date of termination or expiration of this Agreement, upon written request from Client, Founders Software shall extract and deliver Client Data to Client in the format selected by Founders Software and (c) after 30 days from the date of termination of expiration of this Agreement, Founders Software shall be permitted to remove or overwrite all Client Data from Founders Software’s systems; provided, however, that Founders Software may retain a copy of Client Data to the extent required by applicable law. All provisions of this Agreement which by their nature should survive any termination or expiration of this Agreement will so survive and may be enforced at any time after the date of termination of expiration.
   
   8.2 Liquidated Damages. If this Agreement is terminated for any reason, other than by Client as a result of Founders Software’s Breach or non-renewal of the Term, then Client acknowledges that such termination constitutes a material breach of this Agreement. Client further acknowledges that the actual damages likely to result from such material breach are difficult to estimate as of the Effective Date and may be difficult for Founders Software to prove. Accordingly, Client agrees that it shall pay to Founders Software within five (5) days after the date of termination, the amount calculated as follows: monthly fees, plus applicable taxes and fees, for the balance of the Term (the “Liquidated Damages Amount”). The parties intend that Client’s payment of the Liquidated Damages Amount would serve to compensate Founders Software for Client’s material breach and the parties do not intend for it to serve as punishment or penalty for any such material breach by Client.

9. GENERAL
   
   9.1 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective unless set forth in a document that purports to amend this Agreement and that is executed by both parties hereto.
   
   9.2 Client’s Responsibilities. Client shall be responsible for procuring, installing and maintaining all equipment and devices, telephone lines, internet connectivity, communications and data interfaces and other hardware necessary to access the Services including, without limitation, the system requirements specified in Section 1.4(g).
   
   9.3 No Assignment. Client shall not, directly or indirectly, by operation of law or otherwise, sell, transfer, assign, sublicense or subcontract this Agreement or any right or obligation hereunder. Any assignment made in contravention of this provision is void.
   
   9.4 Payments. All payments required under this Agreement shall be made to the Founders Software at its principal place of business in United States Dollars.
   
   9.5 Taxes. In addition to any other fees and expenses payable under this Agreement, Client shall pay any governmentally imposed tax, levy, fee, assessment, charge or imposition of any nature assessed against or imposed with respect to or in connection with the services rendered under this Agreement. Client shall pay to Founders Software any such tax, levy, fee or imposition upon the written request of the Founders Software if accompanied by evidence of the imposition of any such tax, levy, fee or imposition.
   
   9.6 Force Majeure. Founders Software shall not be liable for any delay or failure in performance of any obligation under this Agreement, which are caused by, or in any manner arise from, directly or indirectly, any cause beyond Founders Software’s reasonable control.
   
   9.7 Governing Law. The validity, construction, and performance of this Agreement shall be governed exclusively by the laws of the State of New York, United States of America, without regard to conflict of law principles.
   
   9.8 Severability. The provisions of this Agreement will be severable, and if any clause, sentence, paragraph, provision or other part of this Agreement will be adjudged by any court of competent jurisdiction to be invalid, such judgment will not affect, impair or invalidate the remainder of this Agreement, which remainder will continue in full force and effect.
   
   9.9 Notices. All notices sent, communicated or delivered to either of the parties hereto shall be in writing addressed to such party at its address as first set forth in this Agreement or at such other address as such party shall last have designated for such purpose by written notice to the other, and shall be deemed to have been effectively given five (5) days after having been posted by, postage‑paid First Class U.S. Mail or e-mailed or, if delivered by overnight carrier, or faxed, when received.
   
   9.10 Arbitration. All disputes, controversies or differences, which may arise between the parties out of or in relation to or in connection with this Agreement, or the breach thereof, shall be finally settled by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, by which each party hereto is bound. In the event Founders Software or Client brings a claim for arbitration, such arbitration shall occur in Buffalo, New York. Each party shall choose one arbitrator and the two arbitrators so chosen shall choose a third. All arbitrators shall be fluent in speaking and writing English. The proceedings shall be conducted in the English language and no translations of documents, testimony or argument from the English language into any other language shall be required. Representatives of the parties who are not licensed attorneys in the United States or residents therein may participate or assist in the proceedings. A stenographic record shall be made of the proceedings at the equal expense of the parties. In connection with such Arbitration, all periods of notice provided for in applicable arbitral rules shall be extended by ten (10) additional days. The arbitrators shall state the reasons for their award. The obligation of the parties to submit any dispute arising under or related to this Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this Agreement.
   
   9.11 Equitable Remedies. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under this Agreement would give rise to irreparable harm to Founders Software for which monetary damages would not be an adequate remedy and in the event of a breach or a threatened breach by Client of any such obligations, Founders Software shall, in addition to any and all other rights and remedies that may be available to Founders Software at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Client agrees that Client will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 9.11.
   
   9.12 No Third Party Beneficiaries. Except for indemnified parties set forth in Section 6, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
   
   9.13 Attorney’s Fees and Litigation Expenses. In the event either party commences an arbitration proceeding pursuant to Section 9.10 above, the prevailing party shall be entitled to the award of its reasonable attorney’s fees, together with its arbitration expenses, expert witness fees, discovery expenses and travel expenses.
   
   9.14 Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication which is not intended to be disclosed to third parties.
   
   (a) Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information”shall mean all information and documentation of a party that: (i) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or (iii) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (w) already in the possession of the receiving party without an obligation of confidentiality; (x) developed independently by the receiving party, as demonstrated by the receiving party, without violating any obligations of confidentiality; (y) obtained from a source other than the disclosing party without an obligation of confidentiality; or (z) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Agreement, in all cases and for all matters, Client Data shall be deemed to be Confidential Information unless it is subject to one of the aforementioned exceptions
   
   (b) Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to require their respective employees, agents, and subcontractors to keep all Confidential Information confidential upon terms that are no less restrictive than those contained in this Agreement.

   (c) Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

   (d) Surrender of Confidential Information upon Termination. Upon termination of this Agreement each party shall, within five (5) calendar days from the date of termination, return to the other party all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which is in such party’s possession, custody, or control. Should Founders Software or Client determine that the return of any Confidential Information is not feasible, such party shall destroy the Confidential Information and shall certify the same in writing within five (5) calendar days from the date of termination to the other party.
   
   9.15 Third Party Audits; Investigations; Subpoenas. Founders Software may, from time to time, be required to respond to or comply with audit requests, investigations, subpoenas, and the like related to Client and Client’s business (collectively, “Information Requests”) from regulatory agencies and other third parties, including, without limitation, the state Attorneys General. Client acknowledges that Founders Software will incur costs and expenses, including, without limitation, those related to data extraction, and reasonable attorneys’ fees and disbursements, in connection with such Information Requests. Client agrees that Client shall promptly reimburse Founders Software for all reasonable costs and expenses (including, without limitation, those related to data extraction, and reasonable attorneys’ fees and disbursements) arising from Founders Software’s compliance with Information Requests. This reimbursement obligation is in addition to and does not limit any other rights or remedies available to Founders Software under this Agreement or under law.

SCHEDULE 1

Definitions

“Addendum” means a written amendment to this Agreement executed by the parties. 

“Authorized Contact” means Client’s internal designate authorized to contact Founders Software in the event of a Service Defect or other emergency, or for product support.

“Claim” or “Claims” means a unique submission to, or receipt from, governmental agency payors for reimbursement for services provided to a recipient, patient, or individual on a specific date of service.

“Client Data” means all of Client’s data submitted to and processed through the Services.

“Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services.

“Delivery Date” means the date on which the Client is given access to use the Service, including installation of the software and user credentials, provided that all required setup fees have been satisfied.

“Documentation” means the written materials relating to the operation of the Software (either in hard copy or electronic form), including, without limitation, user manuals, and/or program documentation associated with Service, in the English language.

“Founders Software Materials” means the Service (including the Software), Documentation, API, and Host System and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Founders Software or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Host System. For the avoidance of doubt, Founders Software Materials include Resultant Data and any information, data, or other content derived from Founders Software’s monitoring of Client’s access to or use of the Services, but do not include Client Data.

“Fee Commencement Date” means the date that Founders Software will begin charging fees, which shall be the Delivery Date.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Resultant Data” means data and information related to Client’s use of the Services that is used by Founders Software in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

“Service” or “Services” means the Software, which is hosted on computer systems controlled by Founders Software, and which is made available to Client through the internet.

“Service Defect” means any instance in which Service does not operate correctly because it does not conform to the specifications set forth in the Documentation.  A Service Defect shall not include any instance in which the Service operates incorrectly as a result of Client’s misuse, modification or alteration of the Service or incorrect operation due to Client’s use of improper, inadequate or defective hardware, software and/or internet service.

“Service Defect Correction” means programming the modifications, additions, or deletions which when made or added to the Service, revises the Service so as to cause it to materially conform to the Documentation, or a procedure or routine, that, when observed or followed in the ordinary operation of the Service eliminates the practical adverse effect, if any, on Client, of any Service Defect.

“Software” means the proprietary software application referred to as MedBatch that enables users to submit Claims to governmental agency payors for reimbursement.

“Training Services” means those training services provided by Founders Software to Client as described in Exhibit B.

“Update” or “Updates” means new version releases, enhancements, modifications, or patches for the Software released by Founders Software after the Effective Date of this Agreement, all of which shall be subject to the terms and conditions of this Agreement.

EXHIBIT A

PRODUCT SUPPORT; AUTHORIZED CONTACTS

 Product Support.  Founders Software will make commercially reasonable efforts to provide to Client commercially reasonable instructional assistance in using the Software via telephone, live chat or email (“Product Support”) between the hours of 8:30AM and 5:00PM Eastern Time, on Founders Software regular work days (Monday through Friday, excluding holidays).

Founders Software will not provide assistance for issues unrelated to the Software such as, without limitation, Client hardware issues, internet connectivity issues, viruses, and Windows updates on Client’s computers.  Any support that is provided by Founders Software to address an issue which is determined to be unrelated to instructional assistance in using the Software, or a Service Defect, shall be charged at a rate of $150 per hour with a one (1) hour minimum and supplemental billing increments of thirty (30) minutes.

Authorized Contacts will make Product Support requests by calling or emailing Founders Software’s Product Support staff or by submitting a request via Founders Software’s customer service web portal.

EXHIBIT B

TRAINING SERVICES; IMPLEMENTATION SCHEDULE

 Training Services.  Founders Software will provide up to (3) remote training sessions via screen-sharing, each thirty (30) minutes in length.  Each session will cover a different topic and area of the Software.  Client is responsible to include employees in session(s) that cover areas of the software applicable to their duties within Client’s organization.

In addition, Founders Software will provide links to online documentation and knowledge base articles that describe how to perform common tasks within the Software.

Implementation Schedule:  A Client needs assessment will be performed based on Client’s implementation call with a Founders Software training specialist. An implementation and training schedule will be emailed to Client after the needs assessment has identified the appropriate setup and training required to implement the Service in Client’s operations.

PLEASE KEEP A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

See also – Data Privacy and Security