Revised: 02/15/2017

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1. KEY DEFINITIONS

“Affiliate“ means any company that (i) controls, (ii) is controlled by or (iii) is under common control with either Party or its parent corporation. A company shall be deemed to control a company if it has the power to direct or cause the direction of the management or policies of such company, whether through the ownership of voting securities, by contract, or otherwise.

“Agreement” or “MSA” means this Master Services Agreement, Ordering Documents(s), Statement(s) of Work and such other documents, attachments and exhibits that the parties’ authorized representatives mutually agree to in writing.

“Algorithm” refers to a structured approach developed by Company and incorporated into a computer program created by Company for the review of Standard Data Input File and identification of psychopharmacological treatment that may be inconsistent with best practices.

“Company” and “Relias” mean Relias Learning LLC.  

“Content” means materials provided or posted by Company in connection with the analytics services or subscription, including work product, data, tests, assessments, surveys, text, images, graphics, audio and sound recordings, and videos and modifications, enhancements, or new versions thereof.

“Customer” means the business entity named on the Ordering Document and receiving services under this Agreement.

“Effective Date” refers to the date upon which the Ordering Document is fully executed by Company and Customer.

“HIPAA” refers to the Administrative Simplification Provisions of Title II of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-91, 42 U.S.C. 1301 et. seq.) and implementing regulations enacted by the United States Department of Health and Human Services (45 CFR Parts 160 through 164).

“Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, User interfaces and screen designs, general purpose consulting and software tools, utilities and routines, logic, coherence and methods of operation of systems, training methodology and materials, which Company has created, acquired or otherwise has rights in, and may, in connection with the performance of analytics services or Professional Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.

“Members” are individuals enrolled in a health plan Agency or receiving health care services directly from or paid for by Provider Agency.

“Ordering Document” means the document(s), regardless of actual name, executed by the parties from time to time, which incorporates by reference the terms of this Agreement and describes order-specific information such as description of analytics services and/or Professional Services ordered, and other business terms.

“Professional Services” means consulting, reporting, lettering, implementation, training or other Professional Services to be performed by the Company described in the attached Implementation Level document, or in one or more additional Ordering Documents mutually agreed to by the parties in writing.

“Project Manager” means the implementation consultant assigned by Company to manage the creation and implementation of the services for Customer.

“Protected Health Information” means individually identifiable information about the physical or mental health of any person or payment for physical or mental health services that is created or received by Provider Agency or created by Company on behalf of Provider Agency.

“Providers” means state and local health care providers responsible for direct care and/or care coordination services that are a part of the Provider Agency health network and provide health care services to individuals.

“Provider Agency” means health network comprised of Providers responsible for direct health care and/or health care coordination services.

“Provider Agency’s Provider Data” is any Provider Agency’s Provider Company Information, Claims Data or other Protected Health Information that is disclosed to Company as a result of this Agreement.

“Relias Analytics” means Relias Analytics platform which includes a number of Company services, including its Behavioral Pharmacy Management Program™ (BPM), Opioid Intervention Program™ (OPI), Integrated Health Profile™ (IHP), and Compliance Measure Track and Trend™ (Company).

“Standard Data Input File” means records of adjudicated claims of payment for covered services provided to Members, including inpatient and outpatient medical, pharmacy and associated provider details provided to Company in the requested standard format including number of files, column header names and order, data types, field lengths and consideration to required versus optional data.

“Statement of Work” or “SOW” means the document(s) executed by the parties from time to time, which incorporates by reference the terms of this Agreement and is used in lieu of an Ordering Document to describe a set of work, timeline, and cost estimate for Professional Services.

“Users” means those persons who (a) have been authorized by Customer to access and use the subscription and Professional Services for accessing analytic data; (b) have complied with any registration requirements reasonably required by Company and have been issued a personal and unique User ID and Password to access and use the Subscription Services. Only current employees and independent contractors of Customer are eligible to be “Users”.

2. RELIAS ANALYTICS PLATFORM

2.1          Ordering Document. Each Ordering Document and SOW, if applicable, shall: (i) describe the Relias Analytics and the covered populations in sufficient detail to enable Company to determine the resources required to deliver Relias Analytics to Customer; (ii) identify any professional services to be provided, and fees to be paid for such services; (iii) identify project managers responsible for coordination of the efforts of Company and Customer; (iv) state the responsibilities of Company and Customer related to the provision of data and implementation of the Relias Analytics; (v) establish milestones and a timetable for implementation of the Relias Analytics; (vi) identify the Customer Data required to enable Company to operate and perform the Relias Analytics; and (vi) describe the compensation to be paid to Company for provision of the Relias Analytics.

2.2          Modifications. Company reserves the right to modify the manner in which it delivers Relias Analytics from time to time, provided that such modifications shall not have a material impact on Company’s delivery of the Relias Analytics to Customer pursuant to this Agreement and that Customer is notified in advance of any such modifications.

2.3          Site of Services. The services provided by Company will be performed at Company’s facility or at such other facility as Company may choose.

2.4          Relias as Information Services Provider. Customer acknowledges that Company is acting solely as information services provider and does not purport to be engaged in the practice of medicine or any other professional clinical activity. The work product generated by Company consists solely of information to be evaluated by medical or other healthcare professionals in the exercise of their independent professional judgment. All decisions regarding the treatment of individual patients are the responsibility of the treating clinical professional. Provider Agency will retain the full authority and responsibility for its use of the information provided by Company and the management of, including but not limited to establishment of formularies, payment of health benefits, participation by Providers in Provider Agency’s networks and the treatment of all individual patients.

2.5          Statements of Work; Change Orders. Company will perform subscription and professional services according to the Ordering Document as the parties may agree to in writing from time to Either party may propose a change order to add to, reduce, or change the subscription and professional services ordered. Each change order shall specify the change(s) to the subscription and professional services, the time to perform the subscription and professional services, and the fees owed to Company, due to the change. Once executed by both parties, a change order shall become a part of the Ordering Documents.

2.6          Cooperation. Customer shall provide Company with good-faith cooperation and access to such information, facilities, personnel and equipment as Company may reasonably require in order to provide the subscription and professional services. Customer acknowledges that Company’s performance is dependent upon the timely and effective completion of Customer’s responsibilities hereunder and Customer’s timely decisions and approvals in connection with the subscription and professional services. Company shall be entitled to rely on all such decisions and

3. DATA EXCHANGE; USE AND DISCLOSURE OF DATA

3.1           Data to Be Provided to Company.

a. Data Requirements. Data will be provided to Company via the applicable data format file or Data Use Agreement, involving all necessary parties to enable Company to perform Relias Analytics. Data requirements include, but may not be limited to:

• Claims Data to the extent necessary to enable Company to perform data analysis and deliver the Relias Analytics;
• An electronic roster or means of identifying all individual users of health care services provided by Provider Agency or Providers during the period for which Claims Data is provided;
• A roster of end users, including email addresses, identified to access data analytics information via Relias Analytics.
• Eligibility criteria, covered services, formulary, or the terms of payment for services covered by Provider Agency.

b. Delivery of Provider Agency’s Data. All required Data will be delivered to Company in electronic form using file formats and secure data transfer procedures agreed upon by the parties.

3.2           Company Use of Provider Data. Provider Agency’s Provider Data is the property of Provider Agency a. Company will not use or disclose Data except as permitted by this Agreement, as reasonably required for the administration of Company and the provision of the Company services, or as otherwise required by law. Access to Provider Agency’s Provider Data will be limited to Company employees and Company’s third party representatives who require access to the data to perform Relias Analytics.

3.3           HIPAA Compliance. The parties have entered a Business Associate Agreement, dated as of June 1, 2013, that includes the terms and conditions required by the HIPAA Privacy and Security Rules (45 CFR Parts 160 – 164), a copy of which is attached hereto as Exhibit B (“HITECH Agreement”). Company will not use or disclose Protected Health Information except as permitted by the HITECH Agreement. The HITECH Agreement is deemed incorporated into this Agreement by reference hereto. As required by the HITECH Agreement, Company will implement reasonable and appropriate administrative, technical and physical safeguards of the confidentiality, integrity, and availability of Data (including protected health information) in a manner that is consistent with the standards and implementation specifications of the HIPAA Security Rule (45 CFR Part 164, Subpart C).

3.4           Data Aggregation Services. Company will provide data aggregation services to Provider Agency, as permitted by 45 CFR 164.504(e)(2)(i)(B).

3.5           Limited Data Set. As permitted by 45 CFR 164.514(e), Provider Agency agrees that Company may create and retain a “limited data set” of Provider Agency Data that excludes direct identifiers of individuals, their relatives, employers, or household members. In addition, Company may use Provider Agency’s provider Data to create de-identified data sets. Company may use the limited data set or de-identified data for purposes of research about psychopharmacological treatment and delivery of services to people diagnosed with mental illnesses, and continuing development of quality improvement methods to support the health care operations of health benefit plans and healthcare providers. Company agrees that it will follow the requirements of 45 CFR 164.514(e)(2) in its use of the limited data and de-identified data sets.

3.6           Viruses and Disabling Code. Company will use commercially reasonable efforts to prevent the coding or introduction of viruses, disabling code or similar items into the Provider Agency systems by Company or its agents; and Company will, in the event a virus, disabling code or similar item is found to have been introduced into the systems by Company or its agents, at no additional charge, assist Provider Agency in reducing the effects of the virus, disabling code or similar item.

4. FINANCIAL TERMS.

4.1           Fees and Payment Terms; Fees and payment terms are specified in the applicable Ordering Document. All payments made hereunder shall be in US Dollars. Company may, after the first twelve (12) months of the initial term, and not more than once in a twelve (12) month period, modify the fees for services upon sixty (60) days written notice. Unless otherwise specified in the Ordering Document, payment of all fees is due thirty (30) days after the invoice date. Interest accrues on past due balances at the lesser of 1½% per month or the highest rate allowed by law. Failure to make timely payments shall be a material breach of the Agreement and Company will be entitled to suspend any or all services hereunder upon thirty (30) days written notice to Customer and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Company. Unless expressly provided otherwise, prices do not include taxes. Customer agrees to pay any federal, state or local sales, use, personal property, excise taxes or other taxes arising out of this Agreement.

4.2            Expenses. Provider Agency will reimburse Company for travel and related expenses reasonably incurred by Company in the course of delivery of the Relias Analytics to Provider Agency. Travel reimbursement will be in accordance with Provider Agency commercially reasonable travel and expense reimbursement policies.

4.3            No Contingencies. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Company regarding future functionality or

5. CONFIDENTIALITY.

5.1           Confidential Information. Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the other “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary” or which should be reasonably understood by each party to be confidential or proprietary, including, but not limited to, the terms and conditions (but not the existence) of this Agreement, all trade secrets, Intellectual Property as well as results of testing and benchmarking of the services. Each party will protect the other party’s Confidential Information from unauthorized dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Company may use, for purposes outside of this Agreement, anonymous, de-identified data; however, Company agrees not to use or disclose this information to the extent prohibited by applicable law. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was lawfully in the receiving party’s possession before receipt from the disclosing party without a duty of confidentiality; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one party without reference to any Confidential Information of the other.

5.2           Compelled A party (“Disclosing Party”) may disclose Confidential Information of the other party if it is compelled by law to do so, provided the Disclosing Party gives the other party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

5.3           Company Information. The parties hereby acknowledge that their personnel may gain access to information that the other party deems to be confidential and/or proprietary information and which has commercial value in its business and is not in the public domain. “Confidential Information” means any and all proprietary business information of the disclosing party that does not constitute a Trade Secret (as hereafter defined), including any proprietary business information of which the receiving party becomes aware as a result of this Agreement and/or its access to and presence at the other party’s facilities. “Trade Secrets” means information related to the business or services of the disclosing party or its Affiliates which: (i) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts by the disclosing party or its Affiliates that are reasonable under the circumstances to maintain its secrecy, including, without limitation, (a) marking any information reduced to tangible form clearly and conspicuously with a legend identifying its confidential or proprietary nature, (b) identifying any oral presentation or communication as confidential immediately before, during, or after such oral presentation or communication, or (c) otherwise treating such information as confidential. “Trade Secret” includes, without limitation, Relias Analytics platform and its component parts, including the Behavioral Pharmacy Management Program™, Quality Indicators™, Clinical Considerations™, Opioid Intervention Program™ (OPI), Integrated Health Profile (IHP), and Compliance Measure Track and Trend (CMTT) and Algorithms used by Company, any and all technical and non-technical data related to designs, programs, research, software file structures, flow charts, business rules embedded within Quality Indicators™ or Algorithms, drawings, techniques, standards, inventions, finances, actual or potential customers and suppliers, research, development, marketing, and existing and future products and employees of the disclosing party and its Affiliates. “Company Information” means, collectively, the Confidential Information and Trade Secrets. Company Information also includes information that has been received by either party from any third party which such party is obligated to treat as confidential, and all software tools, methodologies, documentation, business plans, product plans, and all related technical materials and enhancements and modifications thereto.

5.4           Report of Unauthorized Use or Disclosure of Company Information. Each party will immediately report to the other any use or disclosure of Company Information of the other that is not permitted by this Agreement or other written agreement of the parties.

5.5           Remedies. Both parties expressly agree that a breach or threatened breach of any confidentiality obligations by the receiving party, its Affiliates, or an employee is highly likely to cause significant, irreparable harm to the disclosing party and that the disclosing party shall be entitled, in that case, to temporary, preliminary and/or injunctive relief, or any other equitable remedy deemed appropriate by the reviewing court, to protect its interests in its Confidential Information. Should the receiving party learn of a breach or threatened breach of the other party’s Confidential Information, the receiving party shall immediately notify the disclosing party of the nature of the breach or threatened breach and the Confidential Information that has been disclosed. The receiving party shall take all necessary steps to immediately cure or prevent such breach and to ensure no further release of any Confidential Information.

6. OWNERSHIP.

6.1           Grant of Rights. All rights not expressly granted in this Agreement are reserved by Company and its
Company and its licensors shall retain sole and exclusive ownership of, and all rights, title, and interest in, Relias Analytics and Content and the Site, including without limitation (a) Intellectual Property embodied or associated therein, and (b) all derivative works (subject to the provisions of section 7.5) and copies thereof.

6.2           Professional Services. Company shall retain all rights, title and interest in and to any and all Intellectual Property used or in any manner employed by Company in the provision of Professional
Customer shall (i) ensure that all Users of services comply with the terms and conditions of this Agreement, (ii) promptly notify Company of any actual or suspected violation thereof and (iii) cooperate with Company with respect to investigation and enforcement of the Agreement. Customer shall be solely responsible for all acts and omissions of its Users in connection with their access and use of the services.

6.3           Relias Analytics Platform. Provider Agency acknowledges that Company owns all right, title and interest in the Relias Analytics Platform, including but not limited to, components and business processes developed by Company to implement the Relias Analytics Platform, including the Behavioral Pharmacy Management Program™, the Quality Indicators™, Clinical Considerations™, OPI, IHP and all other Algorithms, and to software, documentation and descriptions of those methods and technologies. The Company Intellectual Property is protected by both United States copyright law and international copyright treaty provisions, as well as by United States trademark and patent law.

6.4           Company Intellectual Property. This Agreement transfers to Provider Agency no title, ownership, license, proprietary right, security interest, or the rights to sell, lend, lease, sublicense, trade, barter, market or distribute the Relias Analytics or any other Intellectual Property owned by Company. Provider Agency will not use or disclose any Company Intellectual Property except as permitted by this Agreement.

6.5           Provider Agency Intellectual Property. The parties acknowledge that during the term of this Agreement, Provider Agency may provide or otherwise make available Intellectual Property to Company. This Agreement transfers to Company no title, ownership, license, proprietary right, security interest, or the rights to sell, trade, barter, market or distribute any Intellectual Property owned by Provider Agency. Company will not use or disclose any Provider Agency Intellectual Property except as permitted by this Agreement. Provider Agency may grant Company a limited license to use the Provider Agency Intellectual Property for purposes of performing the Relias Analytics under this Agreement.

6.6           Reverse Engineering. Provider Agency and Company each agree that it will not itself, or through any Affiliate, agent or other third party de-compile, disassemble, reverse engineer or create derivative works based upon the Intellectual Property of the other party, and that upon request it will assign to the other party all rights of ownership in any such derivative works.

6.7           Data Products. Company shall own any enhancements to the Relias Analytics or other Relias Analytics, as well as any general analytical results, data products, or derivative works produced by Company in the process of rendering services to Provider Agency (collectively, the “Data Products”). The Data Products shall be considered Company Intellectual Property and shall not be considered “work for hire” under Copyright Law. Nothing in this section is intended to transfer to Company ownership of any Provider Agency, or reports prepared by Company specifically for Provider Agency, or to permit Company to use or disclose Provider Agency Data or Protected Health Information except as otherwise permitted by this Agreement.

6.8           Customer Mark During the term of the Agreement, Customer hereby grants to Company a non-exclusive, revocable, worldwide, royalty-free, fully paid-up license to use Customer’s name and logo (collectively referred to as “Customer Marks”) in connection with the marketing of products and services provided by Company on Company’s website. Any other uses shall be pre-approved by Customer in a signed writing. Customer grants no other right or license to any other intellectual property owned by Customer by implication, estoppel or otherwise, unless otherwise provided for in the Agreement. Customer represents and warrants that it owns all right, title and interest in, to and under the Customer Marks, and that such Customer Marks do not infringe or otherwise violate any third-party rights. Customer agrees to notify Company promptly of any and all infringements and/or potential infringements of the Customer Marks which come to its attention and to give reasonable assistance in preventing and stopping such infringements.”

7. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY.

7.1           Each party represents and warrants that it has the legal power and authority to enter into this

7.2           Professional Services. Company warrants that the Professional Services will be performed in a workmanlike manner. As Customer’s exclusive remedy for any claim under this warranty, Customer shall notify Company in writing of its claim within thirty (30) days of Company’s completion of the applicable services and, provided that such claim is reasonably determined by Company to be Company’s responsibility, Company shall re-perform the applicable Company’s entire liability and Customer’s exclusive remedy for any breach of the warranty set forth in this section shall be the re-performance of the applicable service.

7.3           Relias Analytics Platform. Company warrants that Relias Analytics will operate in all material respects in conformity with the functional specifications described in the Documentation. “Documentation” means the Relias Analytics User Guide, release notes and on-line help files in the form generally made available by Company to its customers, as updated from time to time by Company. If Relias Analytics does not perform as warranted and there is a material failure of the Relias Analytics Platform to conform to its functional specifications described in the Documentation that is reported by the Customer to, and replicable by, Company (“Errors”), Company shall use commercially reasonable efforts to correct Errors. As Customer’s exclusive remedy for any claim under this warranty, Customer shall promptly notify Company in writing of its claim. Provided that such claim is reasonably determined by Company to be Company’s responsibility, Company shall, within thirty (30) days of its receipt of Customer’s written notice, (i) correct such Error; (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Company, then Company or Customer may terminate the affected services, and Customer will be entitled to a refund of the pre-paid portion of the fees paid for the affected services. The preceding warranty cure shall constitute Company’s entire liability and Customer’s exclusive remedy for cure of the warranty set forth herein in this Section 7.3. If Customer elects not to terminate the services, Customer waives all rights for the applicable warranty cure set forth herein. Company is not responsible for any claimed breach of any warranty set forth in this section caused by: (i) modifications made to the Relias Analytics Platform by anyone other than Company; (ii) Company’s adherence to Customre’s specifications or instructions; (iii) Errors caused by or related to Internet connections; (iv) Customer deviating from the Relias Analytics Platform operating procedures described in the Documentation; (v) discrepancies that do not significantly impair or affect the operation of the services; or (vi) any systems or programs not supplied by Company.

7.4           EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7, ALL SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED ON AN ‘AS IS AS AVAILABLE’ BASIS. COMPANY, ITS LICENSORS, DATA CENTER AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SOFTWARE, DATABASE, CONTENT, DELIVERABLES OR PROFESSIONAL SERVICES ARE ERROR- FREE, ACCURATE OR RELIABLE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED OR WILL COMPLY WITH ANY LAW, RULE OR REGULATION, (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND (iii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY COMPANY, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES PROVIDED HEREUNDER TO ACHIEVE ITS INTENDED RESULTS.

CUSTOMER ACKNOWLEDGES THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND ITS DATA. ACCORDINGLY, COMPANY CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.

CUSTOMER FURTHER ASSUMES SOLE RESPONSIBILITY AND LIABILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES, PROFESSIONAL SERVICES, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE NOT INTENDED TO PROVIDE MEDICAL ADVICE, OPINIONS, DIAGNOSIS, OR A SUGGESTED COURSE OF TREATMENT. CUSTOMER FURTHER AGREES THAT THE SOLE AND EXCLUSIVE RESPONSIBILITY FOR ANY MEDICAL DECISIONS OR ACTIONS WITH RESPECT TO A PATIENT’S MEDICAL CARE AND FOR DETERMINING THE ACCURACY, COMPLETENESS OR APPROPRIATENESS OF ANY DIAGNOSTIC, CLINICAL OR MEDICAL INFORMATION RESIDES SOLELY WITH THE HEALTHCARE PROVIDER. CUSTOMER ACCEPTS ALL LIABILITY FOR SUCH DIAGNOSIS OR TREATMENT. COMPANY SHALL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S OR ANY OF USERS’ USE OF THE SERVICES, PROFESSIONAL SERVICES, IN COMBINATION WITH ANY THIRD- PARTY PRODUCTS, SERVICES, SOFTWARE OR WEB SITES THAT ARE ACCESSED VIA LINKS FROM WITHIN THE SERVICES.

TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THIS AGREEMENT) TO CUSTOMER AND USERS FOR ANY CLAIM BY CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT, WILL BE LIMITED TO THE FEES PAID FOR SUCH ITEMS THAT ARE THE SUBJECT MATTER OF THE CLAIM FOR THE PRIOR TWELVE (12) MONTHS. IN NO EVENT WILL COMPANY, ITS LICENSORS AND SUPPLIERS BE LIABLE TO CUSTOMER OR USERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN THE SHORTER OF ONE YEAR OR THE PERIOD ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.

THIS SECTION 7 SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.

8. INDEMNIFICATION.

8.1           Customer Customer shall indemnify and hold Company, its affiliates, suppliers, data center, employees and officers (a “Company Indemnified Party”) harmless from and against all liability, claims, damages, fines, losses, expenses (including reasonable attorney’s fees and court costs, and the cost of enforcing this indemnity) suffered or incurred by Company or any Company Indemnified Party arising out of, or in connection with any material breach by Customer of any of the terms of this Agreement, including all third- party claims, causes of action, suits, and legal proceedings asserted against Company or a Company Indemnified Party arising out of, or relating to, the use of or reliance by Customer on any analytics services or Professional Services.

8.2           Company Company shall indemnify and hold harmless Customer and its principals, officers, directors, agents, and employees (the “Customer Indemnified Parties”), and at Company’s option, either defend Customer Indemnified Parties or pay their attorney’s fees and court costs, from any loss, cost, damage, or expense incurred by Customer that is finally awarded by a court of law to any third party as a result of a claim alleging that the services infringe or misappropriate a U.S. patent, U.S. copyright, U.S. trademark or U.S. trade secret of a third party, solely provided such alleged infringement or misappropriation does not arise from: (i) a modification of the services as delivered to Customer, (ii) the combination of the services with any other process, hardware, software, data, or functionality, (iii) any data or content communicated using such services; or, (iv) any use of the services by Customer in a manner inconsistent with the documentation or instructions provided by Company or otherwise in breach of this Agreement.

8.3           Indemnification The indemnifications made hereunder are solely provided upon the following conditions: (i) the indemnifying party controls any settlement or any suit or claim indemnified hereunder (ii) the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed, is obtained prior to any settlement by the indemnifying party that affects the indemnified party’s rights and obligations; (iii) the indemnifying party is promptly informed of any third party claim indemnified hereunder; and, (iv) in the case of Customer, Customer ceases any alleged infringing activity upon actual or constructive notice of any claim or allegation of infringement.

9. TERM AND TERMINATION.

9.1           Agreement Term. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Ordering Documents and attachments, unless otherwise terminated earlier as provided

9.2           Services Term. The initial term of services commences on the date specified in, and continues for the term set forth in, the Ordering Following the end of the initial term, services shall automatically renew for the same length as the initial term unless either party gives written notice at least sixty (60) days prior to the end of the initial term, or any renewal term, of its intention to terminate any of the services. The pricing for the first twelve (12) months of any renewal term shall be provided by Company in writing no less than sixty (60) days prior to the end of the initial term or any renewal term. The initial term and renewal term(s) are collectively referred to as the “Services Term”.

9.3           Termination. Either party may terminate the Agreement including all Ordering Documents executed thereunder immediately upon written notice (i) in the event that the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach; or (ii) in the event of institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against the other party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by either party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of either party not involving the United States Bankruptcy Code.

9.4           Partial Termination. Where a party has rights to terminate, the non- breaching party may at its discretion either terminate the entire Agreement or the applicable Ordering Documents. Ordering Documents that are not terminated shall continue in full force and effect under the terms of this.

9.5           Effect of Following termination of this Agreement (for whatever reason provided for under the Agreement), Customer shall certify that Customer has returned or destroyed all copies Confidential Information and Intellectual Property of Company and all materials or documents relating to the services in any format and residing on any media. Customer acknowledges that its rights to use the same are relinquished. Company has no obligation to retain Customer data beyond the conditions specified in the BAA following the expiration or termination of Services. Company shall provide the Customer data collected by Company, upon reasonable request and during Company’s normal business hours, for no additional fee during the term specified in the BAA, after which additional fees may be incurred.

Termination for any reason shall not excuse Customer’s obligation to pay in full any and all amounts due or that become due through such termination or that arise under Section 9.6, nor shall termination result in a refund of fees paid, except as expressly provided otherwise in this Agreement.

Upon termination for any reason of a Professional Services engagement, all work product, including all drafts and works in progress of deliverables shall be delivered to Customer. Upon its receipt of a notice of termination, Company shall cease and shall cause any agent or subcontractor to cease all work under the applicable Ordering Documents and minimize any additional costs or reimbursable expenses unless otherwise directed in writing by Customer. Except as may be expressly set forth in the applicable Ordering Documents, Customer shall pay Company’s fees for services performed to the date of termination on a T&M basis together with any expenses reasonably incurred in connection therewith.

9.6           Survival. The following provisions will survive any termination or expiration of the Agreement or Ordering Documents: Sections 1, 4, 5, 7, 8, 9 and 10.

10. GENERAL PROVISIONS.

10.1           Suspension. Company will be entitled to suspend any or all Services and Professional Services upon thirty (30) days written notice to Customer in the event Customer is in breach of this Company may impose an additional charge to reinstate service following such suspension.

10.2           Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this subsection, such as without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

10.3           Subcontractors. Company may subcontract or delegate Subscription and/or Professional Services to any third party without Customer’s prior written consent, provided that Company shall remain responsible to Customer for any services for which it subcontracts or delegates and that Subcontractors are subject to the terms and conditions of the HITECH Agreement.

10.4           Assignment. Company may assign this Agreement and any or all of its rights and obligations herein without Customer’s approval. Customer may not assign or transfer this Agreement without Company’s prior written conesent.

10.5           Non-solicitation. During the term of this Agreement and for a period of one (1) year following its termination, neither party will solicit for employment directly or through other parties, without the other party’s written permission, any individual employed by the other party, provided however that the solicitation or hiring of individuals responding to general public marketing and recruiting advertisements and events shall not be a violation of this provision; only active, targeted solicitation is prohibited.

10.6           Notices. Any notice required or permitted to be sent under this Agreement (except for invoices and notices related to payment of fees and price increases) shall be delivered by hand, by overnight courier, or by registered mail, return receipt requested, to the address of the parties first set forth in the Agreement Signature Page or to such other address of the parties designated in writing in accordance with this subsection.

10.7           Relationship. This Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

10.8           Invalidity. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

10.9           No Waiver. No waiver or failure by either party to exercise any option, right or privilege under the terms of this Agreement on any occasion or occasions will be construed to be a waiver of the same on any other occasion or of any other option, right or Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such party’s right to take subsequent action.

10.10           Entire Agreement. This Agreement, including the HITECH Agreement, Data Use Agreement (if applicable), SOW (if applicable), Ordering Documents and other attachments incorporated by reference, constitutes the parties’ entire agreement relating to its subject It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, proposals, conditions, representations, warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each party. All pre-printed or standard terms of any of Customer’s purchase order or other business processing document shall have no effect.

10.11           No Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a

10.12           Governing Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles of conflict of Any dispute arising from or relating to the Agreement shall be litigated in the state or federal courts located in Wake County, North Carolina, to whose exclusive jurisdiction the parties hereby consent.

10.13           Headings and Drafting. The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a party based on the author of the document.

10.14           Counterparts. The Agreement may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Agreement, and the parties agree that facsimile and/or pdf scanned copies of signatures shall be as effective and binding as original signatures.

10.15           Notice of U.S. Government Restricted Rights. If the Customer hereunder is the U.S. Government, or if the Relias Analytics Platform is acquired hereunder on behalf of the S. Government with U.S. Government federal funding, notice is hereby given that the Relias Analytics Platform is commercial computer software and documentation developed exclusively at private expense and are furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS. Software delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software – Restricted Rights (June 1987).”