Customer Master Services Agreement

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PLEASE READ THESE MASTER SERVICES TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY ALAFFIA TECHNOLOGY SOLUTIONS, INC. (“ALAFFIA”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH ALAFFIA WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA ALAFFIA’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY ALAFFIA SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1.             Free Services. If you are a Standard Service user or accessing the Service on a free, unpaid, trial, beta, testing or similar basis (“Free Services”), then unless otherwise indicated on an applicable Order Form, certain of Alaffia’s obligations under this Agreement will not apply, as further described below.

2.             Order Forms; Access to the Services. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Alaffia grants Customer a non-exclusive, limited, personal, non-sublicensable, nontransferable right and license to internally access and use the Alaffia product(s) and/or service(s)specified in such Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Alaffia’s applicable official user documentation (the “Documentation”).

3.             Implementation and Managed Services. Upon payment of all applicable Fees set forth in each Order Form, Alaffia agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services(“Implementation Assistance”) and to perform any managed and professional services (“Managed Services”) only if and to the extent such assistance and services are set forth on such Order Form. Alaffia will provide all Implementation Assistance and Managed Services in a professional and workmanlike manner in accordance with standards and practices which are generally accepted and exercised by other persons engaged in performing similar services. Customer acknowledges and agrees that, where necessary in order for Alaffia to provide Implementation Assistance and/or Managed Services in accordance with the standards described in this Agreement or in any Order Form, Customer has an obligation to timely provide Alaffia with any relevant assistance and Customer Data (as defined below). If Alaffia provides Implementation Assistance or Managed Services in excess of any agreed-upon hours estimate, or if Alaffia otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Alaffia at its then-current hourly rates for consultation. This Section 3 does not apply to Free Services. Additionally, Customer agrees to reimburse Alaffia for reasonable out-of-pocket costs and expenses incurred in connection with Alaffia’s performance of Implementation Assistance and Managed Services. Alaffia agrees to provide reasonable documentation supporting such expenses.

4.             Support; Service Levels. If applicable, and subject to Customer’s payment of all applicable fees, Alaffia will provide support, maintenance, and uptime for the Autodor Platform in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and(ii) Alaffia’s then-current standard Support and Availability Policy (the current version of which is attached hereto as Exhibit A). The Support and Availability Policy and Alaffia’s obligations under this section do not apply to Free Services.

5.             Service Updates; Beta Products. From time to time, Alaffia may provide upgrades, patches, enhancements, or fixes for some or all of the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Alaffia shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Alaffia may make improvements and modifications to the Services at any time in its sole discretion; provided that Alaffia shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes that might adversely impact Customer’s use of the Autodor Platform and the Services. In the event that Alaffia provides Customer with access to any beta, free trial, demonstration, pre-release or similar versions of the Services (as may be indicated on the Services or otherwise by Alaffia), then (i) Customer acknowledges that, notwithstanding anything to the contrary herein, such Services are experimental in nature, are provided “AS IS”, and may not be functional on any machine or in any environment, and (ii) Alaffia’s obligations pursuant to Sections 4 (“Support; Service Levels”) and 16 (“Indemnification”)shall not apply to such services.

6.             Ownership; Feedback.As between the parties, Alaffia retains all right, title, and interest in and to the Autodor Platform, the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Alaffia for the purposes of this Agreement, or otherwise belonging to Alaffia, including any copies and derivative works of the foregoing and all Alaffia Confidential Information (as defined below). The Autodor Platform and any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. For clarity, Alaffia shall own all right, title and interest in and to all data generated by Alaffia. No rights or licenses are granted except as expressly and unambiguously set forth in this agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Alaffia with respect to the Services (“Feedback”). Alaffia acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer acknowledges and agrees that all Feedback, including all intellectual property and proprietary rights therein, shall be owned by Alaffia, and hereby makes and agrees to make all assignments necessary to accomplish the foregoing ownership. Nothing in this Agreement will impair Alaffia’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

7.             Fees; Payment. Customer shall pay Alaffia the fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Services (excluding taxes based on Alaffia’s net income). All payments shall be made electronically via credit card, ACH or Wire. All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Alaffia shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, atAlaffia’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below, such renewal shall include the additional fees for such excess users and usage. Alaffia may, from time to time, implement reasonable fee increases upon thirty (30) days’ prior written notice to Customer.

8.             Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services(except to the extent applicable laws specifically prohibit such restriction);(ii) modify, translate, or create derivative works based on the Services; (iii)copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to on the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Alaffia product or service;(vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Alaffia may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations(including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

9.             Customer Data.For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Alaffia, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Alaffia as contemplated hereunder, in each case with out any infringement, violation or misappropriation of any third party rights(including, without limitation, intellectual property rights and rights of privacy). Alaffia shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Alaffia is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Alaffia’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90)days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Alaffia may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated De-Identified Data (as defined below),and (ii) freely use, retain and make available Aggregated De-Identified Data for Alaffia’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Alaffia’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Alaffia in connection with Customer’s use of the Services, but only in aggregate, de-identified form which can in no way be linked specifically to Customer. To the extent that Customer is a Covered Entity or a Business Associate and the Customer Data includes Protected Health Information(as each of these terms is defined by the Health Insurance Portability and Accountability Act (“HIPAA”)), Alaffia and Customer will enter into the Business Associate Agreement attached to this Agreement as Exhibit B.

10.          Confidentiality. For purposes of this Agreement, “Confidential Information” shall mean to the extent previously, presently or subsequently disclosed by or for either party(the “Disclosing Party”) to the other party (the “Receiving Party”) all financial, business, legal and technical information of the Disclosing Party or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. ConfidentialInformation shall not include any information that (i) was rightfully known to the Receiving Party without restriction before receipt from the Disclosing Party, (ii) is rightfully disclosed to the Receiving Party without restriction by a third party, (iii) is or becomes generally known to the public without violation of this Agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party or its employees without access to or reliance on such information. The pricing information set forth in an applicable Order Form, Documentation and Feedback are Alaffia’s Confidential Information, and the Customer Data is Customer’s Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and shall not disclose such Confidential Information to any third party except as expressly permitted herein without the Disclosing Party’s written consent. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information oflike importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain copies of the Disclosing Party’sConfidential Information for routine backup and archival purposes subject to the confidentiality obligations set forth herein. The Receiving Party may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Receiving Party shall promptly notify the Disclosing Party of any disclosure requirement and provide reasonable assistance to the Disclosing Party in the Disclosing Party’s efforts to prevent and/or limit the disclosure.

11.          Ask Autodor AI Chat Features. If Customer enters into an OrderForm to receive Ask Autodor or otherwise uses or interacts with Alaffia’s integrated chat assistance features made available on, through or in connection with the Autodor Platform (collectively, “AI Chat Features”), this Section 11 applies to Customer’s use and interaction therewith. Customer acknowledges and agrees that the AI Chat Features are powered by artificial intelligence and machine learning algorithms that are developed, trained and operated by a third party (“Third Party Models”).  Alaffia does not control or influence the training or hosting of Third Party Models, and is unable to guarantee the suitability, accuracy, quality, security, legality and reliability of Third Party Models.In connection with Customer’s access to and use of the AI Chat Features, Customer may have access to certain responses, outputs and text that are elicited directly or indirectly by Customer (collectively, “Output”).  Subject to Customer’s compliance with the terms and conditions of this Agreement, Alaffia grants Customer a right during the applicable Order Form Term to use the Output for the internal business purposes of Customer, only as provided herein and in connection with using the Services in accordance with the Documentation. Customer acknowledges and agrees that, notwithstanding anything to the contrary herein, all Output is provided “AS IS” and should be used at Customer’s own risk. Before using or interacting with the AI Chat Features, Customer is responsible for making Customer’s own determination that the AI Chat Features are suitable, and that Customer should not act or refrain from acting on the basis of the Output. Customer should evaluate the accuracy of any Output as appropriate for Customer’s use case, including by using human review of the Output. Under no circumstances will Alaffia be liable in any way for any Output, including, but not limited to, infringement of intellectual property rights, for any errors or omissions in any Output, or for any loss or damage of any kind incurred as a result of a user’s interaction with the AI Chat Features.

12.          Third-Party Integrations. Customer acknowledges and agrees that (i) the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (e.g., other vendors of Customer) (“Third PartyIntegrations”), (ii) the availability and operation of the Services or certain portions thereof may be dependent on Alaffia’s ability to access such ThirdParty Integrations, and (iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Services. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third Party Integrations that it integrates with the Services, and Customer shall indemnify, defend and hold harmless the Alaffia for all claims, damages and liabilities arising out ofCustomer’s use of any Third Party Integrations in connection with or through the Services. Alaffia cannot and does not guarantee that the Services shall incorporate (or continue to incorporate) any particular Third PartyIntegrations and does not make any representations or warranties with respect to Third Party Integrations. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Integrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

13.          Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. Foreach Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a“Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Alaffia may suspend or limit Customer’s access to or use of the Services if (i) Customer’s account is more than sixty(60) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of theServices which interferes with Alaffia’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a)Alaffia shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Alaffia shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Alaffia shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Alaffia to Customer, including any assistance in exporting the Customer Data, shall be billable at Alaffia’s standard rates then in effect.

14.          Non-Solicit. Customer acknowledges and agrees that the personnel and contractors utilized by Alaffia in the performance of this Agreement are an important asset of Alaffia. Accordingly, at all times during the Term of this Agreement and for a period of twelve (12) months thereafter, Customer, without the prior written consent of Alaffia, shall not directly or indirectly solicit, employ or otherwise engage the employees, contractors or officers of Alaffia.

15.          Representations and Warranties. Each party represents and warrants that: (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and any Order Forms and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound. 

16.          Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Services (in the case of Customer as Indemnitor), or (ii) the Autodor Platform (in the case of Alaffia as Indemnitor but expressly excluding any claims arising out of or in connection with any use of or access to FreeServices, AI Chat Features or Third Party Integrations), infringe, violate, or misappropriate any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z)reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Alaffia do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Alaffia (including without limitation anyCustomer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Alaffia, (iv) combined with other products, processes or materials not provided by Alaffia (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.

17.          Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALLOF WHICH ARE EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALAFFIA DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) ANY OF THE FOREGOING WILL MEET ANY REQUIREMENTS OR EXPECTATIONS, OR (C) ANY OF THE FOREGOING OR THE SERVER(S)AND SYSTEM(S) THAT MAKE THE FOREGOING AVAILABLE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ACKNOWLEDGES AND AGREES THE AI CHAT FEATURES ARE SUPPORT TOOLS AND ANY OUTPUT PRODUCED, GENERATED OR DERIVED THERE FROM DOES NOT CONSTITUTE LEGAL, MEDICAL, FINANCIAL OR PROFESSIONAL ADVICE IN ANY FORM. ADDITIONALLY, OUTPUT MAY CONTAIN ERRORS AND MISSTATEMENTS AND MAYBE INCOMPLETE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHOULD, AND WILL, EVALUATE THE ACCURACY OF ALL OUTPUT.

18.          Limitation of Liability.EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 7, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TOTHE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III)FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (ORPAYABLE) BY CUSTOMER TO ALAFFIA HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

Miscellaneous. This Agreement(including all Order Forms) represents the entire agreement between Customer and Alaffia with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Alaffia with respect thereto. In the event of any conflict between these Terms and an Order Form, these Terms shall govern; provided, however, that if an Order Form references a conflicting provision in these Terms that is intended to be modified by such Order Form, then such OrderForm shall govern with respect to such conflicting provision. The Agreement shall be governed by and construed in accordance with the laws of the State of NewYork, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in NewYork, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Customer hereby consents to inclusion of its name and logo in client lists that may be published as part of Alaffia’s marketing and promotional efforts. From time to time upon Alaffia’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer). Alaffia may issue a press release concerning the arrangements under this Agreement between Customer and Alaffia, which will be provided to Customer for review and approval, which approval will not be unreasonably withheld or delayed. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Alaffia may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.

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Exhibit B

HIPAA BUSINESS ASSOCIATE AGREEMENT

WHEREAS, Alaffia and Customer have entered into a Services Agreement. In connection with Alaffia’s services, Alaffia and Customer anticipate that Alaffia will create or receive Protected Health Information from and/or on behalf of Customer, which information is subject to protection under the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104 191, as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”), and related regulations promulgated by the Secretary (together “HIPAA”).

WHEREAS, in light of the foregoing and the requirements of HIPAA, Alaffia and Customer agree to be bound by the following terms and conditions.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

a. Capitalized terms used, but not otherwise defined, in this BA Agreement shall have the same meaning given to those terms by HIPAA as in effect or as amended from time to time.

b. “Services Agreement” shall mean any present or future agreements, either written or oral, between Customer and Alaffia under which Alaffia provides services to Customer which involve the use or disclosure of Protected Health Information.

2. Obligations and Activities of Alaffia.

a. Use and Disclosure. If Protected Health Information is created by or disclosed to Alaffia, Alaffia agrees not to use or disclose Protected Health Information other than as permitted or required by the Services Agreement, this BA Agreement or as Required by Law. Alaffia shall comply with the provisions of this BA Agreement relating to privacy and security of Protected Health Information and all present and future provisions of HIPAA that relate to the privacy and security of Protected Health Information and that are applicable to Business Associates where Customer is a Covered Entity or to Subcontractors where Customer is a Business Associate.

b. Appropriate Safeguards. Alaffia agrees to use appropriate safeguards to prevent the use or disclosure of the Protected Health Information other than as provided for by this BA Agreement. Without limiting the generality of the foregoing sentence, Alaffia will:

i. Implement administrative, organizational, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information that it creates, receives, maintains or transmits on behalf of the Customer as required by the Security Rule;

ii. Report to Customer any Security Incident involving Electronic Protected Health Information of which Alaffia becomes aware. Any actual, successful Security Incident will be reported to Customer in writing without unreasonable delay. Any attempted, unsuccessful Security Incident of which Alaffia becomes aware will be reported to Customer orally or in writing on a reasonable basis, as requested by Customer. If HIPAA is amended to remove the requirement to report unsuccessful attempts at unauthorized access, the requirement hereunder to report such unsuccessful attempts will no longer apply as of the effective date of the amendment.

iii. Notify Customer following the discovery of a Breach of Unsecured Protected Health Information in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than 60 days (or within any shorter deadline imposed by applicable State law) after discovery of the Breach. A Breach is considered “discovered” as of the first day on which the Breach is known, or reasonably should have been known, to Alaffia or any employee, officer or agent of Alaffia, other than the individual committing the Breach. Any notice of a Security Incident or Breach of Unsecured Protected Health Information shall include the identification of each Individual whose Protected Health Information has been, or is reasonably believed by Alaffia to have been, accessed, acquired, or disclosed during such Security Incident or Breach as well as any other relevant information regarding the Security Incident or Breach.

c. Reporting. Alaffia agrees to report, without unreasonable delay, to Customer any use or disclosure of Protected Health Information by Alaffia or a third party to which Alaffia disclosed Protected Health Information not permitted by this BA Agreement of which Alaffia becomes aware.

d. Minimum Necessary Standard. To the extent required by the “minimum necessary” requirements of HIPAA, Alaffia shall only request, use and disclose the minimum amount of Protected Health Information necessary to accomplish the purpose of the request, use or disclosure.

e. Mitigation. Alaffia agrees to take reasonable steps to mitigate, to the extent practicable, any harmful effect that is known to Alaffia of a use or disclosure of Protected Health Information by Alaffia in violation of the requirements of this BA Agreement (including, without limitation, any Security Incident or Breach of Unsecured Protected Health Information). Alaffia agrees to reasonably cooperate and coordinate with Customer in the investigation of any violation of the requirements of this BA Agreement and/or any Security Incident or Breach. Alaffia shall also reasonably cooperate and coordinate with Customer in the preparation of any reports or notices required to be made under HIPAA or any other Federal or State laws, rules or regulations, to any Individual (entitled to notice in connection with a Breach), regulatory body, or any third party, provided that any such reports or notices shall be subject to the prior written approval of Customer.

f. Subcontractors. If Customer is a Covered Entity and Alaffia is acting under this Agreement as a Business Associate, then Alaffia shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits Protected Health Information on behalf of Alaffia. Alaffia shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to Alaffia through this BA Agreement.

g. Access to Designated Record Sets. To the extent that Alaffia maintains Protected Health Information in a Designated Record Set, Alaffia agrees to provide access, at the request of Customer, and in the time and manner designated by the Customer, to Protected Health Information in a Designated Record Set created or received by Alaffia solely on behalf of Customer only, to Customer or, as directed by Customer, to an Individual in order to meet the requirements under HIPAA Regulations. If an Individual makes a request for access to Protected Health Information directly to Alaffia, Alaffia shall notify Customer of the request within ten (10) business days of such request. Customer shall have the sole responsibility to make decisions regarding whether to approve a request for access to Protected Health Information, or if Customer is itself a Business Associate, to provide all required information regarding such request to allow an applicable Covered Entity to make decisions regarding whether to approve a request for access to Protected Health Information.

h. Amendments to Designated Record Sets. To the extent that Alaffia maintains Protected Health Information in a Designated Record Set, within thirty (30) days of a receipt of a request from Customer for the amendment of an Individual’s Protected Health Information contained in such Designated Record Set, Alaffia agrees to provide such Protected Health Information to Customer for amendment and to incorporate any such amendment(s) to Protected Health Information in the Designated Record Set maintained by the Alaffia pursuant to HIPAA Regulations and in the time and manner designated by the Customer. If an Individual makes a request for an amendment to Protected Health Information directly to Alaffia, Alaffia shall notify Customer of the request within ten (10) business days of such request. Customer will have the sole responsibility to make decisions regarding whether to approve a request for amendment to Protected Health Information, or if Customer is itself a Business Associate, to provide all required information regarding such request to allow an applicable Covered Entity to make decisions regarding whether to approve a request for amendment to Protected Health Information.

i. Access to Books and Records. Alaffia agrees to make its internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by Alaffia on behalf of, Customer available to the Secretary for purposes of the Secretary determining Customer’s and Alaffia’s compliance with the Privacy Rule.

j. Accountings. Alaffia agrees to, within thirty (30) days of request for an accounting of disclosures of Protected Health Information from Customer, make available to Customer such information as is in Alaffia’s possession and as would be required for Customer, or if Customer is itself a Business Associate, an applicable Covered Entity, to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with HIPAA. If Alaffia receives a request for an accounting directly from an Individual, Alaffia shall forward such request to Customer within ten (10) business days. Customer shall have the sole responsibility to provide an accounting of disclosures, or if Customer itself is a Business Associate, to provide all required information to an applicable Covered Entity to allow the Covered Entity to provide an accounting of disclosures.

3. Permitted Uses and Disclosures by Alaffia.

a. Services Agreement. Except as otherwise limited in this BA Agreement, Alaffia may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Customer as specified in the Services Agreement, provided that such use or disclosure would not violate HIPAA if done by Customer or the minimum necessary policies and procedures of the Customer. Customer represents and warrants that if Customer itself is a Business Associate then it will communicate all limitations and restrictions on Customer’s use and disclosure of Protected Health Information in Customer’s Business Associate Agreement with an applicable Covered Entity and will not instruct Alaffia to use or disclose any Protected Health Information in any manner that Customer itself is not permitted to use or disclose such Protected Health Information.

b. Use for Administration of Alaffia. Except as otherwise limited in this BA Agreement, Alaffia may use Protected Health Information for the proper management and administration of the Alaffia or to carry out the legal responsibilities of the Alaffia. Customer acknowledges and agrees that proper management and administration of Alaffia includes, without limitation, modifications or upgrades to its software or services, and development of new features or functionality thereof, or new related product or services.

c. Disclosure for Administration of Alaffia. Except as otherwise limited in this BA Agreement, Alaffia may disclose Protected Health Information for the proper management and administration of the Alaffia, provided that (i) disclosures are Required by Law, or (ii) Alaffia obtains reasonable assurances from the third party to whom the information is disclosed that the third party will (a) protect the confidentiality of the Protected Health Information, and (b) use or further disclose the Protected Health Information only as Required by Law or for the purpose for which it was disclosed to the third party.

d. Data Aggregation. Alaffia may use Protected Health Information to provide Data Aggregation services relating to the Health Care Operations of Customer if required or permitted under this Agreement or the Service Agreement.

e. De-Identified Information. Alaffia may use Protected Health Information to create de-identified health information in accordance with the HIPAA de-identification requirements. Alaffia may disclose de-identified health information for any purpose permitted by law.

4. Customer Obligations.

a. Permissible Requests by Customer. Except as set forth in Section 3 of this BA Agreement, Customer shall not request Alaffia to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Customer.

b. Minimum Necessary PHI. When Customer discloses Protected Health Information to Alaffia, Customer shall provide the minimum amount of Protected Health Information necessary for the accomplishment of Alaffia’s purpose.

c. Permissions; Restrictions. Customer warrants that it has obtained and will obtain any consents, authorizations and/or other legal permissions required under HIPAA and other applicable law for the disclosure of Protected Health Information to Alaffia. Customer shall notify Alaffia of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Alaffia’s use or disclosure of Protected Health Information. Customer shall not agree to any restriction on the use or disclosure of Protected Health Information under 45 C.F.R. § 164.522 that restricts Alaffia’s use or disclosure of Protected Health Information under this BA Agreement unless Alaffia grants its written consent.

d. Notice of Privacy Practices. Except as required under HIPAA or other applicable law, with Alaffia’s consent or as set forth in the Services Agreement, Customer shall not include any limitation in the Customer’s notice of privacy practices that limits Alaffia’s use or disclosure of Protected Health Information under this BA Agreement.

5. Term and Termination.

a. Term. This BA Agreement shall be effective as of the date of this BA Agreement and shall terminate when all of the Protected Health Information provided by Customer to Alaffia, or created or received by Alaffia on behalf of Customer, is destroyed or returned to Customer, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.

b. Termination Upon Breach. Any other provision of this BA Agreement notwithstanding, either party (the “Non-Breaching Party”), upon knowledge of a material breach by the other party (the “Breaching Party”), shall provide an opportunity for the Breaching Party to cure the breach or end the violation. If Breaching Party does not cure the breach or end the violation within thirty (30) calendar days, the Non-Breaching Party may terminate: (A) this BA Agreement; and (B) all of the provisions of the Services Agreement that involve the use or disclosure of Protected Health Information In the event that termination of this BA Agreement is not feasible, in the Non-Breaching Party’s sole discretion, the Non-Breaching Party has the right to report the breach to the Secretary.

c. Effect of Termination.

i. Except as provided in Section 5(c)(ii), upon termination of this BA Agreement, for any reason, Alaffia shall return or destroy all Protected Health Information received from Customer, or created or received by Alaffia on behalf of Customer. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Alaffia. Alaffia shall retain no copies of the Protected Health Information.

ii. In the event that Alaffia reasonably determines that returning or destroying the Protected Health Information is infeasible, Alaffia shall extend the protections of this BA Agreement to such Protected Health Information and limit further uses and disclosures to those necessary purposes that make return or destruction infeasible, for as long as Alaffia maintains the Protected Health Information. Customer acknowledges and agrees that examples of infeasibility may include, but are not limited to: (i) the inability to delete Practice Protected Health Information from backup tapes or other backup systems, and (ii) the need to retain certain Practice Protected Health Information temporarily during an ongoing investigation related to a Security Incident or Breach of Unsecured Protected Health Information.

6. Compliance with HIPAA Transaction Standards. When providing its services and/or products, Alaffia shall comply with all applicable HIPAA standards and requirements (including, without limitation, those specified in 45 CFR Part 162) with respect to the transmission of health information in electronic form in connection with any transaction for which the Secretary has adopted a standard under HIPAA (“Covered Transactions”). Alaffia will make its services and/or products compliant with HIPAA’s standards and requirements no less than thirty (30) days prior to the applicable compliance dates under HIPAA. Alaffia represents and warrants that it is aware of all current HIPAA standards and requirements regarding Covered Transactions, and Alaffia shall comply with any modifications to HIPAA standards and requirements which become effective from time to time. Alaffia shall require all of its agents and subcontractors (if any) who assist Alaffia in providing its services and/or products to comply with the terms of this Section 6.

7. Miscellaneous.

a. Regulatory References. A reference in this BA Agreement to a section in HIPAA, means the section as in effect or as amended or modified from time to time, including any corresponding provisions of subsequent superseding laws or regulations.

b. Amendment. The Parties agree to take such action as is necessary to amend the Services Agreement from time to time as is necessary for the parties to comply with the requirements of HIPAA.

c. Survival. The respective rights and obligations of Alaffia under Section 5(c) of this BA Agreement shall survive the termination of the Services Agreement or this BA Agreement.

d. Interpretation. Any ambiguity in this Agreement shall be resolved to permit the parties to comply with HIPAA.

e. Miscellaneous. The terms of this BA Agreement are hereby incorporated into the Services Agreement. To the extent that Alaffia receives Protected Health Information from or on behalf of Customer and except as otherwise set forth in Section 7(d) of this BA Agreement, in the event of a conflict between the terms of this BA Agreement and the terms of the Services Agreement, the terms of this BA Agreement shall prevail. The terms of the Services Agreement which are not modified by this BA Agreement shall remain in full force and effect in accordance with the terms thereof. This BA Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, exclusive of conflict of law rules. Each party to this BA Agreement hereby agrees and consents that any legal action or proceeding with respect to this BA Agreement shall only be brought in the courts of the state where the Customer is located in the county where the Customer is located. The Services Agreement together with this BA Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and this BA Agreement supersedes and replaces any former business associate agreement or addendum entered into by the parties. This BA Agreement may be executed in counterparts, each of which when taken together shall constitute one original. Any PDF or facsimile signatures to this BA Agreement shall be deemed original signatures to this BA Agreement. No amendments or modifications to the BA Agreement shall be effected unless executed by both parties in writing.