Addendum to Software License Agreement

ADDENDUM TO SOFTWARE LICENSE AGREEMENT

(HOSTED)

This Addendum (“Addendum”), dated effective as of the day of JanuaryFebruaryMarchAprilMayJuneJulyAugustSeptemberOctoberNovemberDecember, 20, (“Effective Date”), is made and entered into by and between 4medica (“Company”) and (“Licensee”) with respect to that certain software license agreement dated as of the day of JanuaryFebruaryMarchAprilMayJuneJulyAugustSeptemberOctoberNovemberDecember, 20 (“License Agreement”). Company and Licensee may sometimes be individually referred to herein as a “Party” and collectively as the “Parties.” This Addendum and the License Agreement are referred to herein collectively as the “Agreement.”

RECITALS

Licensee is a provider of healthcare services.

Licensee is in need of certain electronic health record (“EHR”) application services, and also is in need of certain hosting, implementation, training, and support and maintenance services with respect to an EHR solution.

Company has developed a hosted EHR solution (the “Program,” as defined more fully in Schedule1.1).

Licensee would like to subscribe to the Program (inclusive of all necessary licenses to utilize the applications utilized as part of the Program), pursuant to the terms and conditions of the Agreement.

Company would like to host, implement, train, support, and maintain the Program and license the Program (together with related Documentation and Services) to Licensee for use and access through the Site (as defined in Schedule1.1), pursuant to the terms and conditions of the Agreement.

Licensee and Company are entering into the License Agreement contemporaneously with their execution of this Addendum.

Licensee and Company wish to amend and supplement certain provisions of the License Agreement through the execution of this Addendum with the intent to make this Addendum controlling with respect to any inconsistent or contrary terms or conditions in the License Agreement, except as otherwise expressly provided herein.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I
TRANSACTIONS

1.1  Definitions. Schedule1.1 contains a partial list of definitions for terms capitalized in this Agreement. For purposes of the Agreement, any defined terms occurring in both the License Agreement and this Addendum will have the meanings assigned to them under this Addendum. Terms capitalized but not defined in this Addendum, but defined in the License Agreement, will have the meaning ascribed to them in the License Agreement.

1.2  Scope and Structure of Agreement. This Agreement governs all transactions between the Parties with respect to the licensing of the Program and the purchases of related products and services by Licensee from Company (“Transactions”). The Parties shall memorialize each Transaction by an order in the form of Schedule1.2 (“Order Form”) to be executed by Company and the Licensee. Each Transaction shall be governed by the terms of the Agreement and the applicable Order Form. A Transaction is effective as of the date on which Company and the Licensee have executed the applicable Order Form (“Order Effective Date”).

1.3  Addition and Removal of Users: Reorganizations.

(a)  Addition. With respect to each Transaction hereunder, Licensee will have the option from time to time in its discretion to add Users to the Transaction. Each Order Form may set forth an additional Subscription Fee required and other terms for adding Users to the Transaction. If the Order Form does not set forth an additional Subscription Fee required, then no additional Subscription Fee will apply. To add a User to a Transaction, Licensee shall notify Company in writing of the name of the new User and shall agree to pay the additional Subscription Fee set forth in the Order Form, if applicable. Unless otherwise provided in an Order Form, upon Licensee’s agreement to pay the additional Subscription Fee, if applicable, the new User will for all purposes of the applicable Order Form be deemed a User under the Order Form.

(b)  Removal. With respect to each Transaction hereunder, Licensee will have the option from time to time in its discretion to remove Users from the Transaction. Each Order Form may set forth the decreases to the Subscription Fee and other terms that apply when removing a User from the Transaction. If the Order Form does not set forth decreases to the Subscription Fee in the event of removal of a User, then the specific Subscription Fee under the Transaction will be equitably adjusted to account for any expected decreased usage of Services or the Program or decreased volume of Services provided by Company, and the Parties shall amend the Order Form to reflect such decrease. To remove a User from a Transaction, Licensee shall notify Company in writing of the name of the User being removed. Licensee will be entitled to Transition Assistance under Section15.9 with respect to the removed User. After the termination or expiration of the Transition Period, the removed User will no longer be deemed a User under the Order Form. When a User is removed from a Transaction, Licensee will have the option to assign to the User the right to continue to receive the Services and exercise the license rights under the Order Form, provided that the User separately agrees in writing to comply with the terms and conditions of this Agreement and shall pay an amount equal to the reduction in Licensee’s Subscription Fee.

1.4  Reorganizations. The Parties anticipate that Licensee may undergo reorganizations and changes to corporate structure during the term of this Agreement. Without limiting Licensee’s rights set forth above, Licensee will have the right to reallocate license rights and the rights to receive Services under this Agreement and each Order Form among any successor in interest to Licensee, and authorized Users. Licensee shall notify Company of such changes. Such changes will be without additional cost to Licensee or Licensee’s successor in interest.

1.5  Services. Unless otherwise specified in the applicable Order Form, Company shall provide implementation services in connection with each Transaction as specified below (“Implementation Services”), and shall provide Hosting Services in connection with the Program as defined in Section1.10 below and as further specified in the Order Form and/or the Statement of Work in the form of Schedule1.5 (“SOW”), which shall be incorporated, directly or by reference, into the relevant Order Form. Additional professional Services to be provided by Company may be detailed in the SOW.

1.6  Scheduling. Company and Licensee in a given Transaction may agree on target dates for certain specified milestones, such as the completion of a particular phase, the availability or acceptance of the Program or other Deliverable or the Program Cut-Over Date. These dates shall be set forth in the applicable Order Form or its accompanying Specifications or SOW. Company shall use its best efforts to meet the agreed-upon target dates and shall notify Licensee as soon as Company believes that a particular target date will not be met. The Parties may also agree on deadlines for achieving specified milestones, which will also be set forth in the applicable Order Form or its accompanying Specifications or SOW. If Company fails (or appears likely to fail) to meet a deadline for any reason not attributable to the fault of Licensee, Company shall immediately notify Licensee and shall provide additional persons or other resources, as requested by Licensee and at no additional charge to Licensee, to complete the task involved within the stated deadline or, if the deadline is missed, in as timely a manner as possible. Company shall commence Implementation Services no later than 60 days after contract is signed unless Licensee requests a later date.

1.7  Rights in Data. Licensee will be the sole and exclusive owner of all data, specifications, and other information provided to Company by or on behalf of any User and any and all updates or modifications thereto or derivatives thereof made by or for Company (“Licensee Data”) and all IP Rights in the foregoing. Licensee Data will be deemed Licensee’s Confidential Information. Company hereby irrevocably assigns to Licensee, without further consideration, all IP Rights and other rights Company may have or obtain in Licensee Data. Upon any expiration or termination of this Agreement, or upon Licensee’s request at any time, Company shall promptly provide an electronic copy of all Licensee Data to Licensee in the format and with the file layouts reasonably requested by Licensee, at no additional charge to Licensee. If Licensee requests at any time, Company shall destroy all copies of the Licensee Data in Company’s possession or control. Company shall not withhold any Licensee Data as a means of resolving any dispute. Company shall not use Licensee Data for any purpose other than that of rendering Services under this Agreement, nor sell, assign, lease, dispose of or otherwise exploit Licensee Data. Company shall not possess or assert any lien or other right against or to Licensee Data.

1.8  Safeguarding Licensee Data. Company shall establish and maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, or alteration of Licensee Data in the possession of Company which are (i)in conformance with the requirements set forth in this Agreement; and (ii)no less rigorous than those maintained by Company for its own information of a similar nature. As part of the Services, Company shall develop and maintain procedures for the reconstruction of lost Licensee Data, and Company shall correct, at Licensee’s request, any destruction, loss or alteration of any Licensee Data caused by Company. Company shall employ industry-standard Internet firewall technology to secure and prevent unauthorized access to Licensee Data. Company shall employ an appropriate level of physical security at its data center, including without limitation, fire and intruder alarms and avoidance systems, and other physical security appropriate for mission-critical, secure data processing.

1.9  Security. At a minimum, Company shall employ the following security methods and procedures.

(a)  Access Controls. Company shall only permit access to Licensee Data in accordance with the terms of this Agreement or as otherwise agreed by the Parties in writing.

(b)  Provision. The Parties shall work together in good faith to ensure appropriate User provisioning. Access to data will be as authorized by Licensee under the terms of this Agreement and otherwise, as mutually agreed upon by the Parties in writing.

(c)  Patch Management / Anti-Virus Software. Company shall appropriately manage its use of software patches in accordance with TRUSTe’s Security Guidelines, as applicable as of the Effective Date. In addition, Company shall employ the latest industry-standard anti-virus software at all times while this Agreement is in effect and as long as it maintains or otherwise has in its possession Licensee Data.

(d)  Data Isolation. Licensee Data shall be logically isolated from other Company customers’ data to further restrict unauthorized access using methods and procedures mutually agreed upon by Company and Licensee.

(e)  Network Isolation. Company’s data center shall have appropriate network segmenting of Company and Licensee’s systems at the data center.

(f)  Restricted Access. Company shall not access Licensee Data except as necessary to provide Services under this Agreement. All printed copies (if authorized) of Licensee Data shall be kept to a minimum and shall be shredded at earliest convenience after they are no longer needed for the purpose for which they were authorized.

(g)  Resource and System Monitoring. Company shall provide a comprehensive system monitoring procedure to include server, network, and test PC monitoring, as appropriate.

(h)  No Off-Shoring. Company warrants and represents that any and all Services and Deliverables hereunder shall only be provided by Company employees residing within the United States of America. Company shall ensure that any non-public information or data learned by it as a result of entering into this Agreement shall not ever leave the jurisdiction of the United States of America and shall never be accessed by anyone from outside the United States of America or by anyone who is not an employee of Company. Any modification to the foregoing limitation shall require the prior written consent of Licensee. Any breach of the foregoing shall constitute a material breach of this Agreement.

(i)  Disaster Recovery. Company shall make commercially reasonable efforts to prepare for and otherwise recover from a natural disaster, such that Licensee will be able to promptly restore normal business operations as rapidly as practical after a natural disaster.

1.10  General Requirements.

(a)  Hosting Services; Website Access. Among the Services to be provided under this Agreement, Company shall, in accordance with all Licensee requirements, host on Company’s computer systems an Internet website (the “Site”) that will offer the Program and Services and information to individuals identified by Licensee (collectively, the “Hosting Services”).

(b)  UserIDs and Passwords. Company shall provide approved Licensee personnel with unique user identification numbers and passwords upon Licensee’s request. Upon Licensee’s request, Company shall immediately make all additions, changes and deletion to the user identification numbers and passwords assigned to approved Licensee personnel.

(c)  Licensee Network Access. To the extent Company is granted access to Licensee’s network, Company shall use such access solely to meet its obligations under this Agreement.

(d)  URL Ownership. Each Party shall retain ownership of its respective intellectual property, including its respective URLs, Hyperlinks, trademarks, trade names or otherwise. Company has no ownership or use interest in the foregoing or in the URLs used by Licensee.

(e)  Website User Data. All Licensee trademarks, copyrights and patents and information relating to website visitors, including user data, are the sole property of Licensee, and may be used by Company only with the express written permission of Licensee. Company has no ownership rights over Licensee’s intellectual property.

1.11  Effect of Article; Controlling Provisions. The terms of this Article shall supersede any provisions, terms, and conditions contained in the License Agreement relating to the subject matter addressed in this Article, and the rights of the Parties with respect to such subject matter shall be governed exclusively by the provisions, terms and conditions of this Article. If an Order Form, SOW, or purchase order on a form provided by Company in any way conflicts with or is inconsistent with the terms or conditions herein, the terms and conditions of this Article will prevail.