CitusHealth End User License Agreement

End User License Agreement

1.1License Subject to the terms and conditions of this Agreement and End User’s compliance with all terms herein, CitusHealth hereby grants to End User a non-exclusive, non-transferrable, worldwide, royalty-free, revocable license to access and use the CitusHealth products and services that are integrated into this CitusHealth Products (the “CitusHealth Products”)

1.2Compliance with laws End User is solely responsible for, and shall ensure, that its access to and use of the CitusHealth Products complies with all applicable laws, rules, regulations and best industry practices.

1.3Unauthorized Access and Use End User agrees that it shall not use any persons, means, devices or arrangements to commit fraud, exceed its permitted access to the CitusHealth Products, interfere with other clients or falsify or manipulate results or information generated or collected in connection with the CitusHealth Products. End User may not resell or charge for access to or use of the CitusHealth Products. End User may not use the CitusHealth Products in the operation of a service bureau or otherwise for the benefit of any other person or entity. End User shall not, and shall not permit any third party to, (a) modify, copy or create derivative works based on the CitusHealth Products; (b) frame or mirror any content forming part of the CitusHealth Products, other than on End User’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer the CitusHealth Products; (d) exercise any right or take any action not expressly granted herein; or (e) access the CitusHealth Products in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the CitusHealth Products.

2.1 Intellectual Property Except for the limited access rights set forth in Section 1.1, End User does not acquire any interest in or right to the CitusHealth Products, including by virtue of entering into this Agreement. Without limitation, CitusHealth owns, and shall continue to own, all intellectual property and proprietary rights in and to all portions of the CitusHealth Products. End User will not remove or obscure any copyright, trademark or patent notices that appear on the CitusHealth Products or its output. End User shall take no position contrary to, or that would diminish, the ownership rights set forth herein. Except as expressly set forth in this Agreement, no other licenses or rights are acquired by End User and CitusHealth reserves all rights and interests in and to its intellectual property and CitusHealth Products. End User is solely responsible for all content and information End Users stores, transmits, generates and processes through use of the CitusHealth Products (“End User Materials”).

3.1Warranty CitusHealth warrants that (i) The CitusHealth Products will perform in accordance with its documentation. In the event of a breach of this warranty, CitusHealth will repair or replace the failing or vulnerable CitusHealth Product(s) so that it performs in accordance with such warranty. If, however, after repeated efforts (not to exceed thirty (30) days), CitusHealth is unable to repair or replace the failing or vulnerable CitusHealth Product(s) so that it performs substantially and in all material aspects in accordance with such warranty, End User may receive a refund for a pro rata portions of the fees prepaid for the subscription term but not yet provided under this Exhibit 1 for that portion of the non-conforming CitusHealth Products from the time the breach was first reported to CitusHealth and (ii) its documentation will set forth the features and functionality of the CitusHealth Products and will describe in sufficient detail the procedures for installing and operating the CitusHealth Products.

3.2Disclaimer EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE CITUSHEALTH PRODUCTS ARE PROVIDED TO END USER “AS IS” AND CITUSHEALTH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CITUSHEALTH IS NOT RESPONSIBLE FOR ANY DECISIONS MADE AS A RESULT OF THE USE OF THE SERVICE. CITUSHEALTH DOES NOT WARRANT THAT THE CITUSHEALTH PRODUCTS WILL MEET END USER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE CITUSHEALTH PRODUCTS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. CITUSHEALTH SHALL NOT BE LIABLE TO END USER FOR ANY INOPERABILITY OF THE SERVICE OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. CITUSHEALTH SHALL NOT BE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THIRD PARTIES OUTSIDE OF CITUSHEALTH’S REASONABLE CONTROL.

4.1Indemnification CitusHealth agrees to indemnify, defend and hold harmless End User, its affiliates and their respective officers, directors, and employees from and against any and all liability, claims, causes of action, suits, damages and expenses, including reasonable attorneys’ fees and costs, (collectively, “Losses”) to the extent that such is based upon any third party claim that the CitusHealth Products, as provided by CitusHealth without alteration and when used as authorized, directly infringes upon any third party intellectual property rights. This Section 4.1 shall not apply to the extent any Losses arise from: (a) any use of the CitusHealth Products that is in breach of this Agreement or contrary to any instructions provided by CitusHealth to End User; or (b) the combination, operation, or use of the CitusHealth Products with any product or service not provided by CitusHealth. The foregoing states the entire liability of CitusHealth, and End User’s sole and exclusive remedy, with respect to any claims herein.

4.2Procedure CitusHealth’s obligations are conditioned upon the indemnified party: (i) giving CitusHealth prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party’s obligations, except to the extent prejudiced by such failure or delay), (ii) granting complete control of the defense and settlement to CitusHealth and (iii) reasonably cooperating with CitusHealth, at CitusHealth’s expense, in the defense and settlement of such claim.

5.Damages IN NO EVENT WILL CITUSHEALTH BE LIABLE TO END USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE CITUSHEALTH PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CITUSHEALTH’S ENTIRE LIABILITY UNDER THIS EXHIBIT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO THE CITUSHEALTH PRODUCTS, WHICH ARE MADE. AGAINST IT, WHETHER BASED IN CONTRACT OR NEGLIGENCE, SHALL BE LIMITED TO THE AGGREGATED AMOUNT OF CHARGES PAID BY END USER FOR THE CITUSHEALTH PRODUCTS DURING THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

6.Termination CitusHealth may terminate the license to the CitusHealth Products at any time (i) upon five (5) days prior written notice if End User is in violation of any term herein and does not cure such violation within the notice period or (ii) End User’s continued access to or use of the CitusHealth Products may materially harm CitusHealth or expose it to material liability. Upon any termination, End User must permanently cease access to the CitusHealth Products.

7.General Provision The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. End User may not assign any of its rights or obligations under this Agreement to any other entity without the prior written consent of CitusHealth, which shall not be unreasonably withheld.

8.Data End User agrees that CitusHealth may (i) process all data, including End User’s Protected Health Information, provided to CitusHealth by or on behalf of End User for the purpose of operating the CitusHealth Products for the benefit of End User and (ii) use for any purpose, during and after the term of this Agreement, de-identified data derived from End User’s Protected Health Information as a result of End User’s use of the CitusHealth Products solely the extent used in accordance with the Health Insurance Portability and Accountability Act and any other applicable law.

9.Third Party Beneficiary End User agrees that CitusHealth is a third party beneficiary to its agreement with WellSky Corporation or any affiliate thereof, solely with respect to the terms set forth herein for the CitusHealth Products.