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End User License Agreement

SUBSCRIPTION AGREEMENT

This KanTimeTM Software Subscription Agreement (“Agreement”) is between the entity you represent (“Customer”) and Kanrad Technologies, Inc, a CA corporation (“KanTime”). It is effective on the date KanTime provide you with confirmation of your Subscription or the date on which your Subscription is renewed, as applicable.

1. DEFINITIONS

a. Capitalized terms defined in the body of this Agreement have the meanings so given them. Each reference in this Agreement to a definition is a reference to a definition contained in this Agreement, unless the context expressly provides otherwise.

2. LICENSE; SERVICES

a. KanTimeTM SUBSCRIPTION – KanTime hereby licenses and Customer hereby subscribes to use KanTimeTM Software and all Updates (collectively “KanTime Software” or “Software”) and related Services, for use by Customer for clinical data information, scheduling and time & attendance management, billing and payroll data via the Internet. “KanTime Services” or “Services” shall mean Subscription Services, Support Services, and Implementation Services. The KanTime Services shall be provided by KanTime to Customer in consideration for the payment of applicable fees and in accordance with terms and conditions set forth in this Agreement. Customer understands that KanTime is providing Services to Customer and other customers, and services are provided on a non-exclusive, non-transferable basis. Use of the Service is for Customer, its affiliates and their Users use only. Customer understands and agrees that Customer is granted limited rights to the KanTime Software pursuant to this Agreement and that KanTime retains all ownership and proprietary rights related to any derivative works created therefrom. “Users” shall mean each unique, authorized employee, agent, contractor, service provider of Customer and its affiliates to whom Customer and/or its affiliates has provided a login identification to access the KanTime Services. “Update(s)” shall mean (a) subsequent releases of the KanTime Software that (i) add new features, functionally, and/or improved performance, or (ii) operates on new or other databases, operating systems, or client or server platforms; and (b) bug or error fixes, patches, workarounds, and maintenance releases.

3. TERM

a. This Agreement shall commence upon the date Customer executes the Agreement and shall continue for two (2) years after the Contract Sign Date (“Initial Term”). This Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Term”) unless written notice is received from and to either party at least sixty (60) days prior to the end of the term date or any extended term date, as applicable. The Initial Term and each Renewal Term, if any, may be referred collectively herein as “Term.”

4. PAYMENT AND FEES

a. Customer shall pay KanTime the fees set forth in the KanTimeTM Pricing document attached hereto as Exhibit A. Customer will be invoiced monthly and prorated for partial months. Payment in U.S. currency is due upon receipt of invoice and shall refer to the invoice number. Restrictive endorsements or other statements on checks accepted by KanTime will not apply. Payment terms are Net-30 days from Customer’s receipt of invoice.

b. Customer acknowledges that their monthly payment due may change as a result of changes to their patient census. Customer also acknowledges that additional Implementation Services Fee charges and Subsequent Branch Base License Fees may apply if Customer adds a new service line and/or Subsequent Branch(es) after the Effective Date.

c. As set forth in Section 22 below, Customer shall be responsible for all sales or use taxes, fees or duties imposed by federal, state, local or other governments or governmental entities on or with respect to the services rendered or property provided by KanTime pursuant to this Agreement.

d. If at any time there are overdue or unpaid invoices past 60 days, then KanTime may, pending delivery of written notification via certified mail a minimum of 10 working days’ prior, elect to cease providing services under this Agreement, or deny access to or use of KanTime Software and KanTime Services, until all overdue unpaid invoices are paid in full, and such actions will not constitute a breach of this Agreement by KanTime. Customer shall reimburse KanTime for all costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments. At KanTime’s option, interest charges may be added to any past due amounts at the lower of 1.5% per month or the maximum rate allowed by law.

e. “Headquarters Branch,” shall mean the first branch of Customer’s in which KanTime Software and Services is to be or has been implemented.

f. “Subsequent Branch(es),” shall mean each additional branch of Customer’s in which KanTime Software and Services is to be or has been implemented aside from the Headquarters Branch.

g. “Base License Fee,” shall mean a minimum monthly recurring amount based on a percentage of unduplicated active patients.

h. “Patients Beyond Base License Patients,” shall mean the total number of Customer’s unduplicated active patients beyond the Base License Patients.

i. “License Fee Per Patient Beyond Base License Fee,” shall mean the price per unduplicated active patient Customer has to pay KanTime per month beyond the Base License Fee as further defined in Exhibit A.

j. “Concurrent User Fee,” shall mean a software license that is based on the number of simultaneous users accessing KanTime.

k. “Implementation Services Fee,” shall mean the non-refundable fees Customer has to pay KanTime to carry out the Implementation Services at Customer’s Headquarters Branch and Subsequent Branch(es), payable immediately upon execution of Agreement. See Section 10 for further details regarding the scope of work and Exhibit A for details regarding pricing.

l. “Future Implementation Services Fee,” shall mean the non-refundable fee Customer has to pay KanTime in the event that Customer opens additional Subsequent Branch(es) and/or starts a new service line, aside from Customer’s existing Subsequent Branch(es) and service lines prior to the Effective Date, after the Effective Date that requires KanTime Implementation Services. See Exhibit A for further details regarding pricing.

m. “Optional Services,” shall mean the additional services listed in Exhibit A that are offered to Customer by KanTime. Customer will be billed for these additional services based on actual usage.

n. “Monthly Fee,” shall mean the total fees that Customer has to pay KanTime per month including the Base License Fee and (ii) the License Fee Per Patient Beyond Base License Fee multiplied by the Patients Beyond Base License Patients and (iii) any Optional Services used by Customer.

5. PERMITTED USE

a. The KanTimeTM Services may only be used for purposes set forth in the Agreement and for any lawful purposes and any lawful commercial use (which are both permitted and encouraged).

6. EXHIBITS

a. The KanTimeTM Pricing Sheet and the Business Associate Agreement, hereto attached as Exhibit A and Exhibit B, are deemed part of this Agreement.

7. PROPRIETARY RIGHTS; CONFIDENTIAL INFORMATION

a. KanTime and its third-party licensors retain all rights, title and Interest in and to all hardware, software, technology, information, patents, copyrights, trademarks and other proprietary rights, including any derivative works thereof that may be provided or disclosed under this Agreement. Except as expressly provided herein, no other right or license is granted by KanTime under this Agreement.

b. No work to be performed by KanTime under this Agreement consisting of copyrightable subject matter is or will be “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C § 101, et. seq.).

c. Customer has no, and by this Agreement obtains no, right, title, or interest in or to the KanTime Facilities, except to the extent necessary to access and use the Software and Services in accordance with this Agreement. “Facilities,” shall mean the servers and other hardware and software used by KanTime.

d. Neither party acquires any rights in any trademarks, service marks, trade names, trade dress, logos, corporate names, or domain names, or other similar designations of source or origin, of the other party. All such trademarks, service marks, trade names, trade dress, logos, corporate names, or domain names, or other similar designations of source or origin, are and will remain the property of such party. Nothing contained in this Agreement may be construed as conferring to either party any right to use in advertising, publicity, or other promotional activities any trademarks, service marks, trade names, trade dress, logos, corporate names, or domain names, or other similar designations of source or origin, including any contraction, abbreviation, or simulation of any of the foregoing, of the other party without the express written consent of the other party, such consent to be in the sole discretion of such party.

e. Customer acknowledges that the KanTime Software is composed of confidential data and know how, which are Confidential Information of KanTime, and except for Customer Data, KanTime Software is the sole and exclusive property of KanTime. Customer shall not, during the term of this Agreement or thereafter, without the prior written consent of KanTime, either copy or duplicate or permit anyone else to copy or duplicate any accompanying Documentation; or create or recreate or permit anyone to do so, objects or parts of programs, or any other part thereof with the exception of those copies made of training materials and strictly for internal use only. “Documentation” shall refer to any and all training manuals, release notes, exercises, videos, and other training material provided to Customer by KanTime for the sole purpose of training Users on how to use the KanTime Software.

f. Customer shall not upload any Confidential Information of KanTime or Documentation to a public domain including, but not limited to, social media or any unsecure website, regardless of whether it would be used for training purposes or otherwise.

g. Customer shall not disclose the Software except to its affiliates, Users, and independent contractors who provide services to Customer or assist it in its data processing activities, whose job function requires disclosure to them of the Software. Customer shall inform each such employee of the restriction on use. KanTime acknowledges that from time to time Customer may engage independent contractors to provide services to Customer or assist it in its data processing activities. KanTime agrees that Customer may disclose KanTime’s trade secrets to such independent contractors on the same basis as it is authorized by this Agreement to disclose such information to its own employees, provided such independent contractors are informed of the restrictions on use and disclosure contained in this Agreement and agree in writing to be bound by such provisions.

h. Customer shall inform KanTime of any unauthorized disclosure, copying, or use of Software promptly upon discovering the same.

i. Under no circumstances may Customer use or disclose the Confidential Information of KanTime, or the Software, or the Services, or the information contained therein or results derived therefrom, to assist in the development of a product or service in any format similar to, or which could be competitive with, the Software or Services of KanTime.

j. Customer acknowledges and agrees that monetary damages might not be a sufficient remedy for any breach or threatened breach of this Section 7 by Customer or Customer’s Users, employees, or agents, said breach generally referring to disclosure of Confidential and/or proprietary KanTime Information, processes, procedures or other similar content. Therefore, in addition to all other remedies available at law (which KanTime does not waive by the exercise of any rights under this Agreement), KanTime will be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and Customer hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.

k. Without limiting its remedies hereunder, if KanTime, reasonably and in good faith, determines that there is a material risk that this Section 7 will be breached, then it may demand, by written notification delivered via certified mail, assurances from Customer satisfactory to KanTime that this Section 7 will not be breached. If such assurances cannot be provided within 10 working days following receipt of written notification, KanTime may, but is not obligated to, take such steps as it deems necessary, including terminating this Agreement.

l. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that (i) the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, unpatented inventions, ideas, methods, source code, object code, trade secrets, know-how, protocols, processes, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”, or (ii) due to its character or nature, reasonable people in a like position and under like circumstances would consider to be confidential; or (iii) has been reduced to tangible or written form and marked as confidential or proprietary or, if disclosed orally or visually, was identified as confidential by the Disclosing Party at the time of such disclosure. The Receiving Party agrees not to use the Confidential Information disclosed to it by the Disclosing Party for such party’s own benefit or for any purpose other than the purposes expressly permitted and contemplated under this Agreement. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to third parties except those directors, officers, employees, consultants, and agents who are required to have the information in order to carry out obligations or provide Services pursuant to this Agreement or in the case of Customer to exercise the rights granted to it under this Agreement. Further, the Receiving party has had or will have those consultants, subcontractors, and agents to whom Confidential Information of the Disclosing Party is disclosed or who have access to the Disclosing Party’s Confidential Information sign a non-disclosure agreement substantially similar in content to this Section 7. Further, the Receiving Party will require its employees to whom Confidential Information of the Disclosing Party is disclosed or who have access to the Disclosing Party’s Confidential Information to comply with confidentiality obligations set forth herein. The Receiving Party will take all reasonable measures (1) to protect the secrecy of and avoid disclosure or use of Confidential Information of the Disclosing Party, and (2) to prevent such Confidential Information from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such information. Such measures will include using the degree of care that such party uses to protect its own confidential information, but in any event no less than a reasonable degree of care.

m. The Receiving Party’s obligations under these confidentiality provisions shall not extend to any information (with the exception of PHI) which : (1) is already known to the Receiving Party without any obligation to keep confidential prior to its disclosure by the Disclosing Party; (2) is legally received by the Receiving Party from a third party who is under no confidentiality obligation to the Disclosing Party or any other person; (3) becomes public knowledge through no breach of the terms of this Agreement or other wrongful act of the Receiving Party; (4) is independently developed without any reference or use of any Confidential Information of the Disclosing Party; (5) is disclosed pursuant to the mandatory requirements of a Governmental agency or under Court order. If the Receiving Party (including its respective directors, officers, employees, subcontractors, or agents) is requested or required by a Governmental agency or under Court order to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall unless legally prohibited, provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing Party may seek an appropriate protective order or other remedy and shall offer reasonable cooperation in any effort of the Disclosing Party to obtain a protective order. If such protective order or other remedy is not obtained, the Receiving Party shall be permitted to disclose only the minimum amount of Confidential Information that is legally required to be disclosed to comply with the legal obligation as determined by such Party’s legal counsel and such disclosure shall not be deemed as a breach of this Agreement.

n. Data and information specifically related to the Customer is, and shall remain, the sole property of the Customer as set forth in more detail in Section 9 below. Customer understands that KanTime may freely use feedback, suggestions, requirements, or ideas provided by Customer. KanTime may use the feedback, suggestions, requirements, or ideas of Customer in any way, including in future modifications of the Software, other products or services, or advertising or marketing materials. Customer hereby grants KanTime a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the feedback, suggestions, requirements, or ideas provided to KanTime by Customer in any way. KanTime will not share any internal documents, operating procedures or policies of Customer with any other company and they will be treated as confidential.

8. OBLIGATIONS OF CUSTOMER

a. For the purposes of this agreement, Customer shall include subsidiaries or other business entities for which it exercises operational control. In addition to the above, during the term of this Agreement, Customer agrees to the following:

  1. Customer shall use the Software only to process Customer’s own work and shall not process the work of any other entity or person without first obtaining an additional sublicense.
  2. Customer shall not sell, license, transfer or otherwise exploit, with or without charge, the Software license hereunder.
  3. Neither Customer nor KanTime shall employ any person that is employed by the other organization during the term of this Agreement and for a period of twenty-four (24) calendar months after the termination of this Agreement.
  4. The above shall apply fully to any portion or version of Software as conveyed herein and any Update thereto whether materially derivative or not.

9. CUSTOMER DATA

a. This Agreement provides for access to KanTime’s KanTime Software for use by the Customer. Accordingly:

    1. KanTime acknowledges and agrees that Customer Data is Confidential Information of Customer and is the sole property of the Customer and KanTime shall have no rights to any Customer Data.
    2. Except as set forth in the Business Associate Agreement (BAA), “De-identified” as defined in 45 C.F.R. 164.502, anonymous and aggregated information relating to Customer Data (“Aggregated Data”) may be aggregated with other customer data and used by KanTime for any purpose including, but not limited to: process analyses, product development, reporting, bandwidth and load management needed for forecasting. Notwithstanding anything to the contrary set forth in this Agreement, KanTime’s use of Aggregated Data will not reveal the identity of Customer, its affiliates, their Users and/or employees, customers, or patients and in no event shall KanTime identify Customer, its affiliates or any of their Users, employees, customers, contractors and/or agent of by name or as the source of the Aggregated Data.
    3. Customer is solely responsible for (i) providing the Customer Data (ii) verifying the accuracy and completeness of the Customer Data for use in the Software and KanTime Services, (iii) the creation of Customer’s own data forms utilizing KanTime’s base form templates (iv) all other materials uploaded, posted, or stored through Customer’s use of the Software and KanTime Services.
    4. Unlimited online data storage is provided for Customer transactional data. The online data storage space of 1 TB the Customer is provided for non-transactional, uploaded document storage. Non-transactional data shall include all stored items formatted as bitmapped images, photographs, scanned images, pdf files, or similar. For every subsequent 1 TB of data required for each charged Customer/branch, KanTime will pass any additional expense to Customer at KanTime cost.
    5. Upon notice of termination of this Agreement, KanTime shall provide Customer with a full and comprehensive copy of the customer’s key aggregated information in a universally usable file format or other format agreed to by both KanTime and Customer, inclusive of all Customer patient records. Customer acknowledges and agrees to provide KanTime 30 days from the effective date of termination to deliver this file of all Customer patient records to Customer hereby known as the “Transition Assistance Period.” Notwithstanding anything in this Agreement to the contrary, during the Term and such Transition Assistance Period, KanTime shall not destroy, delete, or erase any Customer Data.
    6. During the Transition Assistance Period, Customer may request and KanTime shall provide Customer a one-user license with read-only access and no ability to add any new records to the KanTime Software, for a monthly fee of $500.00 per Month. This fee is payable in advance each month. Customer agrees to provide KanTime thirty (30) day’s prior written notice of its intent to discontinue ongoing access to its data. If no such notice is received by KanTime and the monthly payment for ongoing access is more than thirty (30) days overdue, such event will constitute notice to KanTime to cease ongoing access and permission to destroy all Customer Data, subject to Section 9vii.

DESTRUCTION OF CUSTOMER DATA

    1. Prior to destruction of Customer Data, KanTime shall make every effort to notify customer, including but not limited to delivery of notice to last known Customer address by certified mail, such notice to customer to communicate intent to destroy the Customer’s data, notice to be delivered a minimum of 10 working days’ prior to said destruction of data, for the express purpose of allowing customer opportunity to remedy any and all outstanding issues, thereby canceling or postponing said destruction of data.
    2. “Customer Data” includes any information, data or reports (i) provided by Customer, its affiliates and their Users in the course of accessing and using KanTime Software and Services (ii) entered into, submitted or stored in the KanTime Software, including PII and/or (iii) captured by or generated by the KanTime Software in response to such data, content and/or information submitted by Customer, its affiliates and their Users. “PII” includes any PHI (as defined below), nonpublic personal information (as defined under applicable federal and state laws and regulations) or any information or data that is related to an identified or identifiable individual that can be used to identify or locate a person or entity or the activity, or assets of a person or entity, including, but not limited to, names, addresses, passwords, personal identification numbers, account numbers, security codes, and passwords.

10. IMPLEMENTATION & TRAINING

a. KanTime shall take reasonable steps and actions required in order to fully implement the KanTime Software so as to allow Customer full and proper access to and use of the KanTime Software in accordance with this Agreement (hereby known as “Implementation Services”), pursuant to the fees and terms and conditions in Exhibit A, which includes the following:

  1. Transfer of as much existing Customer Data to the KanTime Software as possible. Transfer is limited to client/patient/staff/physician or similar demographic data and does not include historical schedules, visit notes, invoices, associated financial data etc., as they are not compatible with the Software and therefore remain under the sole custody and responsibility of the Customer.
  2. Complete KanTime Online Training.

11. COMPLIANCE WITH HIPAA

a. Customer and KanTime acknowledge and agree that they shall be bound by the terms and conditions set forth in the Business Associate Agreement attached hereto as Exhibit B.

12. WARRANTY

a. KanTime warrants, represents and covenants that it has the right to grant the licenses set forth herein to all the intellectual property embodied in the Software.

b. KanTime represents, warrants and covenants that (i) all Services shall be performed and delivered in a competent, professional and workmanlike manner consistent with the standards of professional and ethical competence and integrity in KanTime’s industry and by personnel with suitable training, education, experience, know-how, competence and skill to perform the Services; (ii) the Services and KanTime Software shall perform in accordance with the specifications and functionality as set forth in the Documentation; (iii) its personnel and or subcontractors shall not introduce any Malicious Code into the KanTime Software and/or any systems, Customer Data and/or network used by Customer, (iv) it has the requisite power and authority to enter into this Agreement and to carry out the transactions and perform its obligations as contemplated by this Agreement; (v) there are no pending or to the knowledge of KanTime’s threatened claims against KanTime, its affiliates and/or any of their customer relating to any ownership, use and/or licensing of the KanTime Software and Documentation; (vi) no additional third party software licenses, license fees, network requirements, and/or hardware other than those specifically itemized in the Documentation are required for the installation and implementation of the KanTime Software and in order for Customer, its affiliates and their Users to access and use the KanTime Software and Services; and (vii) KanTime shall perform the Services and KanTime Software shall comply with all applicable laws, including HIPAA. Further KanTime does not warrant that the Software will be compatible with Customer’s hardware; provided that KanTime warrants that Software and Hosting Services shall be compatible with the third-party software and hardware that are specifically listed in the Documentation. “Malicious Code,” means (i) code intentionally constructed to damage or interfere with or otherwise adversely affect other code, computer programs, data files, or operations; and/or (ii) any other code typically designated to be a virus, including any Trojan horse, worm, or harmful or disruptive component.

c. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KanTime MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE KANTIME SOFTWARE, SERVICE, AND/OR RELATED DOCUMENTATION. KanTime DOES NOT WARRANT THAT KANTIME SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. Refer to Exhibit C- KanTime Production Support and Service Level Availability Policy for more detailed information.

13. INDEMNIFICATION

a. Customer agrees to indemnify, defend and hold harmless KanTime, its affiliates, officers, directors, employees, shareholders, contractors, agents, representatives, business partners and suppliers, from any and all third party claims against KanTime, whether asserted in litigation or not, arising from any claim that the Customer Data or any part thereof infringes or otherwise violates the patent, copyright, trade secret or other intellectual property right of any third party. KanTime shall transmit to Customer notice of any such claim within three (3) working days of acquiring knowledge of same and shall cooperate with Customer in defending the claim. Customer shall have the right to select counsel, and KanTime shall not settle such claim absent authorization from Customer.

b. KanTime agrees to indemnify, defend, and hold harmless Customer, its affiliates and their directors, officers, employees, contractors, Users and agents against any and all third-party claims, whether asserted in litigation or not, arising from any claim that the Software or any part thereof or any KanTime Services infringes or otherwise violates the patent, copyright, trade secret or other intellectual property right of any party. This indemnity covers damages judgments, settlement amounts, attorney fees and other costs. Customer shall transmit to KanTime notice of any such claim within five (5) days of acquiring knowledge of the same and shall cooperate with KanTime in defending the claim. KanTime shall have the right to select counsel, and Customer shall not settle such claim absent authorization form KanTime.

c. The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (b) reasonably cooperating with the indemnifying party at the indemnifying party’s expense; and (c) granting control of the defense to the indemnifying party; provided that the indemnifying party shall not be authorized to settle such action in a manner which would admit liability on the part of the indemnified party or result in any payment or material obligation on the party of the indemnified party without prior written approval by the indemnified party. The indemnified party shall have the right, at its option and expense, to have its own counsel participate in any such proceedings.

14. LIMITATION OF LIABILITY

a. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE MONTHLY FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR THE SOFTWARE AND SERVICES DELIVERY DURING THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD FOR THE SOFTWARE AND SERVICES FROM WHICH THE CLAIM AROSE.

b. EXCEPT WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE OR SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS AVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

c. Customer acknowledges and agrees that the professional duty to a patient in providing health care services lies solely with the health care professional providing the patient-care services. As between KanTime and Customer, Customer assumes and takes full responsibility for the use of information and Customer Data through the Software in connection with the patient-care services by Customer. Clinical information, if any, provided to or obtained from the Software is intended only as a supplement to, and not a substitute for, the knowledge, expertise, and judgment of professional personnel. KanTime disclaims all liability for the use of all information provided by, and the results obtained from, the Software by professional personnel. KanTime and KanTime’s Affiliates, and each of their stockholders, partners, members, beneficial owners, officers, directors, managers, employees, agents, and other representatives, are not liable for the actions of Customer that may result in any liability due to malpractice or failure to warn. KanTime provides no medical or other professional advice in connection with this Agreement, the Services, or the information contained therein or related thereto. Customer acknowledges and agrees that a licensed professional is responsible for independently reaching any medical or other professional judgment, and for any resulting diagnosis and treatments, notwithstanding any use of the Services or any information provided thereto or obtained therefrom. The absence of a warning in the Software for a given drug or drug combination should not be construed to indicate that the drug or drug combination is safe, appropriate, or effective in any given patient, and KanTime expressly denies any liability therefor. KanTime currently uses Lexicomp which releases monthly patches. KanTime will check and carry out the monthly patches to the KanTime database in each of KanTime’s release cycle deployments which will be no less frequent than every 8 weeks.

15. CUSTOMER REPRESENTATIONS AND WARRANTIES

a. Customer specifically represents and warrants that as of the Effective Date, Customer is not under investigation for any activity that may be considered to be fraudulent and has not been suspended or excluded from participation in the Medicare and Medicaid Programs or other state or federal healthcare programs. Customer will provide written notification delivered by certified mail to KanTime within 30-days of their learning of any threatened or actual suspension or exclusion from participation in the Medicare and Medicaid programs or other state or federal healthcare programs.

b. Customer warrants that it will take reasonable steps to ensure all documents uploaded to the Software will be virus free.

c. Access to and use of the Software may be available through a compatible mobile or tablet device, which may require Internet access or software. Customer agrees that Customer is solely responsible for these requirements, including any applicable changes, updates, and fees as well as the terms of Customer’s agreement with Customer’s mobile or tablet device and telecommunications provider. Customer understands that KanTime makes no warranties or representations of any kind, express, statutory, or implied as to: (i) the availability of telecommunication services from any provider and access to the services at any time or from any location; (ii) any loss, damage, or other security intrusion of the telecommunication services; and (iii) any disclosure of information to third parties or failure to transmit any data, communications, or settings connected with the services.

16. TERMINATION

a. If Customer terminates this Agreement without cause prior to the expiration of the Term, Customer shall be liable to KanTime for sixty-five percent (65%) of the remaining payments due under this Agreement, payable in three equal monthly installments, the first due immediately upon termination.

b. Without limiting its remedies hereunder, if KanTime, reasonably and in good faith, determines that there is a material risk that this Section 7 will be breached, then it may demand, by written notification delivered via certified mail, assurances from Customer satisfactory to KanTime that this Section 7 will not be breached. If such assurances cannot be provided within 10 working days following receipt of written notification, KanTime may, but is not obligated to, take such steps as it deems necessary, including terminating this Agreement.

c. The remaining payments due is calculated by averaging Customer’s Monthly Fee in the immediately preceding three (3) months prior to the notice of termination of the Agreement multiplied by the remaining months left in the Term. This value will then be divided by three (3) to obtain the amount of each monthly installment payment due.

d. In the event of an uncured material breach of this agreement by either KanTime or Customer, the offended party may for cause, provide written notification delivered by certified mail providing the breaching party 10 working days from receipt of the notification to cure such breach. If the breaching party fails to cure the breach within the 10-working days provided, then the offended party may for cause, terminate this agreement.

e. Failure by Customer to make payment to KanTime under this Agreement when due may be considered a material breach of this Agreement.

f. In the event of termination, all fees or charges payable under this Agreement shall become due and payable immediately and without notice or demand by KanTime and all obligations of KanTime under this Agreement shall end immediately upon termination unless specifically provided herein to survive termination.

17. GOVERNING LAW

a. This Agreement shall be governed by and construed in accordance with the laws of the state of Texas and the federal laws of the United States of America. Customer irrevocably submits to the non-exclusive jurisdiction and venue of the state and federal courts located in the state of Texas, United States of America. The application of the United Nations Convention of Contracts for the international sale of goods is expressly excluded.

18. DISPUTE RESOLUTION

a. Any dispute between the parties arising under or relating to this Agreement that cannot be resolved by the parties themselves must be submitted to mediation prior to instituting any action. Each party will bear its own costs in the mediation, including attorneys’ fees and one-half of the cost of the mediator.

b. Any dispute unresolved after mediation shall be submitted to binding arbitration before a single arbitrator conducted in accordance with the Rules of Commercial Arbitration of the American

c. Arbitration Association. Each party will bear its own costs in the mediation, including attorneys’ fees and one-half of the cost of the arbitrator.

d. Any party may apply to a court of general jurisdiction to enforce the arbitrator’s award, and, if enforcement is ordered, the party against whom the order is issued must pay the costs and expenses of the other party in obtaining such order, including reasonable attorneys’ fees. Notwithstanding the provisions of this Section 18, any action by KanTime to enforce its rights under Section 7, or to enjoin any infringement of any intellectual property rights of KanTime, may be commenced in the state or federal courts of Texas.

19. PLANNED MAINTENANCE AND SERVICE INTERRUPTIONS

a. KanTime reserves the right to discontinue service for software maintenance and upgrades each Wednesday and Sunday morning from 12:01 a.m. to 4:00 a.m., Eastern Standard Time. If Customer is expected to be unable to access KanTime’s software applications for more than fifteen (15) minutes within this pre-established window, KanTime will advise Customer prior to such unavailability. KanTime will not be responsible for any damages or costs incurred by the Customer or any of its Users, if any, for scheduled maintenance and service interruptions.

20. PLANNED MAINTENANCE AND SERVICE INTERRUPTIONS

a. KanTime reserves the right to discontinue service for software maintenance and upgrades each Wednesday and Sunday morning from 12:01 a.m. to 4:00 a.m., Eastern Standard Time. If Customer is expected to be unable to access KanTime’s software applications for more than fifteen (15) minutes within this pre-established window, KanTime will advise Customer prior to such unavailability. KanTime will not be responsible for any damages or costs incurred by the Customer or any of its Users, if any, for scheduled maintenance and service interruptions.

21. HELP DESK & SUPPORT

a. KanTime provides product support services with live help desk support available Monday through Friday from 8:00 a.m. Eastern Standard Time to 5:00 p.m. Pacific Standard Time, excluding KanTime’s observed holidays. KanTime also provides a customer-ticketing portal, available within KanTime Software, which is accessible 24x7x365. KanTime makes every effort to respond to all customer support tickets within 24 hours of receipt. Additionally, KanTime provides an escalation policy for obtaining emergency support during non-standard Help Desk & Support work schedules.

22. PAYMENT OF TAXES

a. KanTime’s prices are quoted exclusive of all sales, use or other taxes assessed directly on the KanTime’s Services rendered to the Customer and its Users. In addition to the prices stated in the attached Exhibits, Customer shall pay to KanTime all taxes, fees, duties, licenses, tariffs and levies imposed directly by a governmental entity, if any, upon the software applications rendered herein by KanTime to the Customer and its Users.

23. NOTICES

a. All notices to KanTime hereunder shall be sent to: KanTime Inc. 101 E. Park Blvd Suite 821, Plano, Texas 75074, USA. Any notices to Customer shall be sent to the address set forth in the signature block below.

24. MISCELLANEOUS

a. Each party hereby represents and warrants to the other party as follows: (a) such party is duly organized, validly existing, and in good standing under the laws of the jurisdiction of such party’s organization; (b) such party has all requisite organizational power and authority to perform such party’s obligations under this Agreement; (c) all action on the part of such party to authorize the approval, execution, and delivery of this Agreement has been taken; and (d) this Agreement, when executed and delivered by the other party, will constitute the valid and legally binding obligation of such party, enforceable against such party in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

b. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all such prior agreements and representations between them.

c. No modification, addition or waiver of the terms and conditions of this Agreement shall be effective unless in writing and signed by an authorized representative of both parties. The terms and conditions of any purchase order or other ordering document issued by Customer and accepted by KanTime in connection with this Agreement, which are in addition to or inconsistent with the terms and conditions of this Agreement are void and of no force and effect.

d. KanTime may assign this Agreement in the event of a merger, acquisition or sale. Should Customer be engaged in merger, acquisition or sale, KanTime will re-contract the Agreement based on the existing terms and conditions with the new entity.

e. Neither party shall be liable for any failure or delay in performance due to any cause beyond its reasonable control, including, but not limited to, acts of God, or strikes.

f. The waiver by either party of any of the rights, obligations, limitations, terms and conditions of this Agreement shall not constitute a waiver of any past, current or future obligation to comply with such provisions and no waiver shall be effective unless made in writing and approved by an authorized representative of both parties.

g. In the event any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be reformed to the extent necessary to make it enforceable, or severed, and in either event the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect.

h. Except as otherwise provided in this Agreement, if any party institutes any legal suit, action, or proceeding, including arbitration, against the other party to enforce the covenants contained in this Agreement (or obtain any other remedy in respect of any breach of this Agreement or arising out of or relating to this Agreement), then the prevailing party in the suit, action, or proceeding will be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.

WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR BASED UPON OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (II) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. I HAVE READ AND UNDERSTOOD THIS KanTimeTM SOFTWARE SUBSCRIPTION AGREEMENT AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS CONTAINED HEREIN.