HealthAware Application Terms & Conditions.

All Agreements by and between HealthAware, LLC., a division of Eruptr LLC, (“HealthAware” or “we/us/our”) and HealthAware customers (“Company”), each being a “Party” and collectively referred to as the “Parties”. The Parties enter into a professional services agreement “Agreement(s)” for the provision of hosted consumer engagement technologies and marketing services with the understanding and consent that all Agreements shall be subject to the terms and conditions set forth below:

1.0 Intellectual Property: As between the Parties, HealthAware will retain sole and exclusive ownership of all rights, title and interest in HealthAware’s (a) work papers, proprietary information, scripts, processes, methodologies, know-how, Branded Pages (with the exception of Company Content and Data therein), and Services; (b) all photographs, transparencies, negatives, positives, digital photo files and photographic artwork, text, graphics, sound, video and data and any of the foregoing in any digital or technological format now known or hereafter developed by HealthAware; (c) any software, web enabled applications, computer programs, systems, tools, services or code (both source and object), including without limitation all interfaces, navigational devices, menus, menu structures or arrangements, icons, help or other operational instructions and the literal and non-literal expressions of ideas that operate, cause, direct, manipulate, access or otherwise effect (i) the Branded Pages; (ii) the Services; or (iii) any other intellectual property owned by HealthAware, including copyrighted and trademarked materials contained in the HealthAware website or websites provided by HealthAware that are accessible through the domain name provided by the Company (the “Site”), and any documentation materials that are contained in or related to the items listed in this section (c); (d) all creative concepts, models, designs and ideas employed by HealthAware in performing the Services and any finding, invention, improvement, or discovery, either alone or jointly, whether or not patentable, that is conceived or reduced to practice by HealthAware during the term of Agreement(s); (e) any and all subsequent modifications, revisions, updates, releases, refinements, improvements, enhancements, and derivative works based on any of the foregoing no matter how or when created; and (f) any intellectual property rights in any of the foregoing (“HealthAware Property”). To the extent our reports or other documents delivered to Company contain HealthAware Property, we grant Company a non-exclusive, non-assignable, royalty-free license to use it in connection with the subject of the engagement for the Term of Agreement(s).

1.1 Suggestions: If Company provides or communicates to HealthAware any ideas, information, new features, functionality or performance suggestions related to the Services, including additional information, questions, features, or functionality related to the Services (“Suggestions”), HealthAware may use and incorporate such Suggestions into the Services as applicable. Company acknowledges that the intellectual property created by HealthAware’s incorporation of such Suggestions into the Services will be the sole and exclusive property of HealthAware and all such Suggestions will be free from any confidentiality restrictions that might otherwise be imposed upon HealthAware pursuant to the terms of Agreement(s); provided, however, that Suggestions shall not include any Company patient information or other Company Confidential Information. In addition, HealthAware may use information provided by Company System for the purpose of improving, maintaining and supporting the Services and otherwise providing the Services to Company under Agreement(s), provided that HealthAware uses such information in accordance with the terms of Agreement(s).

1.2 Ownership of Company Content: As between the Parties, Company will retain sole and exclusive ownership of all rights, title and interest in all corporate materials, including its domain name, Company logos and trademarks (“Marks”) provided by Company to HealthAware in accordance with Agreement(s) (“Company Content”). The term “Marks” does not include certain domains owned or licensed by HealthAware from third parties for the provision of Services under Agreement(s); and (b) any intellectual property rights in any such domains. To the extent and solely to the extent that HealthAware makes any modifications to Company Content in connection with its performance hereunder, and subject to other provisions herein, HealthAware hereby irrevocably assigns all right, title and interest in and to such modifications to Company. In the event that any such modifications cannot be assigned, HealthAware hereby grants to Company a perpetual, royalty-free, non-exclusive, assignable, sublicenseable, and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform such modifications.

2.0 Confidentiality & Information Security:
2.1.1 Definition: “Confidential Information” means all confidential or proprietary information disclosed by one Party (“Discloser”) to the other Party (“Receiver”) relating to or disclosed in the course of the performance of Agreement(s). Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Receiver to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself.

2.1.2 Protection of Confidential Information: Receiver will not use any Confidential Information of Discloser for any purpose not expressly permitted by the Agreement and will disclose the Confidential Information of Discloser only to the employees or contractors or consultants or advisors of Receiver who have a need to know such Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than Receiver’s duty hereunder. Receiver will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiver protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

2.1.3 Exceptions: Receiver’s obligations with respect to any Confidential Information of Discloser will terminate if such information: (a) was already known to Receiver at the time of disclosure by Discloser; (b) was disclosed to Receiver by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Receiver has become, generally available to the public; or (d) was independently developed by Receiver without access to, or use of, Discloser’s Confidential Information. In addition, Receiver will be allowed to disclose Confidential Information of Discloser to the extent that such disclosure is (i) approved in writing by Discloser, or (ii) required by law or by the order of a court or similar judicial or administrative body, provided that Receiver notifies Discloser of such required disclosure promptly and in writing (unless prohibited by a government regulator or agency) and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

Notwithstanding the foregoing, any Data that has not been “de-identified” as that term is defined under 45 CFR 164.514 of the HIPAA Privacy Rule shall always be deemed to be Confidential Information, and the treatment of such Data by either Party shall comply with all applicable laws.

2.1.4 If access to any of the materials in HealthAware’s possession relating to a Service Agreement is sought by a third party, or HealthAware is requested or compelled to testify as a fact witness in any legal proceeding related to HealthAware’s work for Company, by subpoena or otherwise, or HealthAware is made a party to any litigation related to HealthAware’s work for Company, HealthAware will promptly notify Company of such action, and either tender to Company’s HealthAware defense responding to such request and cooperate with Company concerning HealthAware’s response thereto or retain counsel for HealthAware’s defense for which Company shall reimburse HealthAware for all reasonable attorney’s fees and costs of defense, unless the purpose of the legal proceeding is due to the proven fault of HealthAware.

3.0 License Grant by Company: Subject to the terms of Agreement(s), Company hereby grants to HealthAware a limited, non-exclusive, non-transferable, non-sublicensable license which is valid until the expiration or termination of Agreement(s), to: (a) reproduce the Company Content and Marks and modify it to the extent necessary to create the Branded Pages in accordance with Company’s Branding policies and Company’s directions; and (b) to use Company Content as required to perform its obligations under Agreement(s). Company further grants to HealthAware a limited, non-exclusive, non-transferable, non-sublicensable royalty-free license to use all Data solely as required to perform its obligations under Agreement(s).

3.1 License Grant by HealthAware: Subject to the terms of Agreement(s), HealthAware hereby grants to Company a limited, non-exclusive, non-transferable (except as permitted in the section below titled No Assignment), non-sublicensable license to: (a) access and use the Services solely in accordance with the terms of Agreement(s); (b) make a reasonable number of copies of documentation provided to Company by HealthAware and relating Solely to the Services and solely for Company’s internal use in connection with the Services; and (c) market the Branded Pages and Services and provide access to the Branded Pages and Services to visitors to the Company’s website; provided that Company may not distribute, sublicense, or otherwise convey any rights in the Services, except as in accordance with Agreement(s) (collectively, the “Company License”.)

The Company License does not extend beyond the current affiliates associated with the Company except to the extent agreed in writing by the Parties. HealthAware has the right to impose additional fees (i) if Company undergoes a material increase in its size, as a result of acquisition or otherwise; and (ii) if Company provides or causes unauthorized access to HealthAware Property. Company agrees that it is licensed to use the Company License in object form only and only behind HealthAware’s firewall or via secure access to web applications hosted by HealthAware. The Company License is valid until the expiration or termination of Agreement(s) and only on the Site (or as otherwise agreed in writing by the Parties). Company may not modify any HealthAware Property, except to the extent permitted in writing by HealthAware.

Upon the effective date of expiration or termination of Agreement(s), the Company License shall terminate immediately except to the extent appropriate for HealthAware’s archival needs. After expiration or termination, each Party shall use reasonable efforts to remove any representations of or references to the Branded Pages from publicly accessible caches, indexes, archives or search engines. HealthAware shall immediately cease use of Marks upon termination of Agreement(s).

3.2 License Restrictions: Company will not (a) copy or duplicate the Services; (b) reverse engineer or access the Services to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services; (c) modify the Services, any documentation provided by HealthAware, or any logos or trademarks of HealthAware or create any derivative product from any of the foregoing, except with the prior written consent of HealthAware, provided that Company’s mere use of the Services on its website in accordance with Agreement(s) shall not be considered a violation of the foregoing; or (d) except as permitted in the section below titled No Assignment; license, use, access, assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey the Services, or pledge as security the Company’s rights under the licenses granted in Agreement(s). Company acknowledges that Agreement(s) grants certain rights to access the Services, as hosted by HealthAware, but nothing herein may be construed to require delivery of a copy of any of HealthAware’s software to Company or to grant Company any right to obtain such a copy.

4.0 Warranties and Disclaimers: Warranties by Both Parties: Each party warrants that it has full power and authority to enter into and perform Agreement(s), and the person signing Agreement(s) on such party’s behalf has been duly authorized and empowered to enter into Agreement(s). HealthAware warrants that (1) the Services will be performed in a timely, professional and commercially reasonable manner in accordance with industry standards and the terms of Agreement(s); (2) the Services and use thereof by Company in accordance with Agreement(s) does not infringe any patent, trademark, copyright, or other intellectual property right; and (3) the Services do not contain any virus, worm, Trojan horse, hacker, or other malicious code that could damage Company, Company’s data, or Company’s technology.

Disclaimer of Warranty: The express warranties in Agreement(s) are in lieu of all other warranties, whether express, implied, or statutory, regarding the Services, including any warranties of merchantability and fitness for a particular purpose. Company acknowledges that it has relied on no warranties other than the express warranties in Agreement(s). HealthAware cannot guarantee or assure the achievement of any particular performance objective, nor can HealthAware guarantee or assure any particular outcome for Company or any other person as a result of Agreement(s) or the performance of the Services. Company understands that it retains final responsibility for its own compliance with applicable laws, regulations, settlement agreements and other obligations imposed by federal or state oversight agencies and that Company cannot transfer or delegate any such responsibility to HealthAware. Company understands that HealthAware has not and cannot make any guarantee or warranty that Company’s use of the Services will be in compliance with all applicable laws, regulations or other obligations during the term of Agreement(s). Company agrees that HealthAware’s provision of Services does not include all matters that might be pertinent or necessary to Company’s compliance with applicable laws and regulations and HealthAware cannot be relied on to detect illegal acts (other than any failure of HealthAware to comply with applicable law), such as fraud, should they exist.

4.1 Services Disclaimer: The Services provided by HealthAware are not medical services of any kind. The information contained in, and provided by, the Services is for the personal use of participants only, and is not intended to diagnose, cure, mitigate, treat or prevent disease or other conditions and is not intended to provide a determination or assessment of a participants state of health. Participants should always consult a licensed healthcare professional such as a family physician or specialist to make healthcare decisions or before starting any diet or exercise program. Company’s healthcare professionals should not use the Services as a substitute for physical examinations, diagnostic evaluations, obtaining individual medical histories, or to diagnose, cure, mitigate, treat or prevent disease or other conditions or to determine or assess a participant’s state of health. HealthAware will not be held responsible or liable for any costs or damages related to the use of any information provided from the Services.

5.0 Indemnification: Each Party shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) the other Party and its directors, officers, employees, agents, and affiliates (collectively, “Indemnified Parties”) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs) (“Losses”), involving a third party claim, which arise out of or relate to (a) a breach of any representation or warranty of the indemnifying Party (the “Indemnifying Party”) contained in Agreement(s); (b) a breach or violation of any covenant or other obligation or duty of the Indemnifying Party under Agreement(s) or under applicable law; (c) the negligence or willful misconduct of the Indemnifying Party; or (d) the Indemnifying Party’s infringement of any trademarks, copyrights, U.S. Patents of a third party or any other third party intellectual property right or misappropriation of any trade secrets of a third party, except to the extent any such Losses are due to the fault of the Indemnified Party.

The Indemnified Parties seeking indemnification will notify the Indemnifying Party of any claim subject to an indemnification obligation and will cooperate with and provide reasonable assistance to the Indemnifying Party (at the Indemnifying Party’s expense) in the defense or settlement of any claim, provided that the Indemnified Parties may, at their own expense, retain separate representation. The Indemnifying Party has the right to control the defense or settlement of any claim, provided, however, that Indemnifying Party will not enter into any compromise or settlement which does not include a complete release of all claims against the Indemnified Parties regarding the matter which is the subject of the claim.

5.1 Limitation of Liability:
EXCEPT AS PROVIDED BELOW, THE TOTAL LIABILITY OF HEALTHAWARE AND ITS SUBSIDIARIES, OFFICERS, EMPLOYEES AND AGENTS FOR ALL CLAIMS AND OBLIGATIONS OF ANY KIND ARISING OUT OF THIS ENGAGEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO TWO HUNDRED FIFTY THOUSAND $250,000 DOLLARS. EXCEPT AS PROVIDED BELOW, NEITHER HEALTHAWARE NOR COMPANY SHALL IN ANY EVENT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES IN AGREEMENT(S) SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIBATIONS UNDER AGREEMENT(S), A PARTY’S BRACH OF CONFIDENTIALITY, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

6.0 Restriction on Use of Personnel: The Parties agree that during the Term of Agreement(s) (including any renewals or extensions thereof), and for a period of one year following its termination (“Restriction Period”), neither Company nor HealthAware nor any affiliate, parent or subsidiary thereof will knowingly employ or engage as an independent contractor, consultant or otherwise, any person who, during the Restriction Period, is or was an employee or independent contractor of the other Party and who worked on this engagement. Notwithstanding the foregoing, this restriction shall not apply to an employee of one Party’s response to a general employment opportunity advertisement of the other Party or if a third-party recruiter, employment agency or similar entity refers a Party’s employee to the other Party.

6.1 Use Restrictions: HealthAware shall use the Marks in conformance with Company’s trademark usage policies or directions as communicated in writing to HealthAware from time to time.

7.0 Company’s Affiliates: Company may not use or permit the use of the Services or the Branded Pages beyond the current affiliates associated with the Company without HealthAware‘s prior written consent, which consent may be withheld in HealthAware’s sole discretion and which may be contingent on Company’s payment of additional fees for such use, which amount shall be in HealthAware’s sole discretion.

8.0 Disposition of Documents: Upon termination of Agreement(s), Company will have several options with respect to disposition of documents related to the engagement that HealthAware does not wish to retain in its files and that HealthAware is not required to retain in its files pursuant to applicable law. Company can (a) direct HealthAware to return all such documents to Company, where practicable; (b) authorize HealthAware to discard or destroy such documents; or (c) direct HealthAware to store any or all such documents at the expense of Company. If Company does not request one of these options for the disposition of materials within sixty (60) days after termination of Agreement(s) and written notice from HealthAware, HealthAware may implement (a) or (b) above. HealthAware will have the right to retain a copy of our reports or work papers for our records, subject to the confidentiality obligations under Agreement(s) and the requirements of applicable law.

9.0 Compliance with Laws: Each Party shall comply with all applicable laws, regulations, rules, ordinances and orders regarding its activities related to Agreement(s), including but not limited to laws concerning personally identifiable information, such as the Health Insurance Portability and Accountability Act of 1996 and the Gramm-Leach-Bliley Act of 1999.

10.0 No Assignment: Neither party shall assign, subcontract, delegate, or otherwise transfer it’s Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, which shall not be unreasonably withheld, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign Agreement(s) in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, upon written notice to the other party (“Notice of Assignment”). Should the party receiving the Notice of Assignment object to the assignment of Agreement(s), or any part of it, then such party may terminate Agreement(s) without penalty by providing written notice, within 90 days after receipt of the Notice of Assignment. The terms of Agreement(s) shall be binding upon the parties and their respective successors and permitted assigns. If Company assigns Agreement(s) to an entity of a significantly different size than Company (with respect to number of staffed beds), the parties will work together in good faith to make any necessary adjustments to Agreement(s).

11.0 Severability; Headings: If any provision of Agreement(s) is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect Agreement(s).

12.0 Independent Contractors: The Parties to any Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by Agreement(s). Neither Party may take any actions that are binding on the other Party.

13.0 Notice: Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified in the Agreement or at such other address as the Party shall specify in writing. Unless otherwise specified, such notice shall be deemed given: upon personal delivery; if sent by fax, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing. Acceptance or approvals required hereunder may be made by e-mail to an address to be designated by the Parties.

14.0 Survival: Sections of any Agreement that either give the Parties rights beyond the termination of Agreement(s) or that do not expressly terminate upon the termination of Agreement(s) will survive any termination of the Agreement.

15.0 Intent: The Parties agree that there are no intended third party beneficiaries under Agreement(s).

All Agreements by and between HealthAware, LLC., a division of Eruptr LLC, (“HealthAware” or “we/us/our”) and HealthAware customers (“Company”), each being a “Party” and collectively referred to as the “Parties”. The Parties enter into a professional services agreement “Agreement(s)” for the provision of hosted consumer engagement technologies and marketing services with the understanding and consent that all Agreements shall be subject to the terms and conditions set forth below:

1.0 Intellectual Property: As between the Parties, HealthAware will retain sole and exclusive ownership of all rights, title and interest in HealthAware’s (a) work papers, proprietary information, scripts, processes, methodologies, know-how, Branded Pages (with the exception of Company Content and Data therein), and Services; (b) all photographs, transparencies, negatives, positives, digital photo files and photographic artwork, text, graphics, sound, video and data and any of the foregoing in any digital or technological format now known or hereafter developed by HealthAware; (c) any software, web enabled applications, computer programs, systems, tools, services or code (both source and object), including without limitation all interfaces, navigational devices, menus, menu structures or arrangements, icons, help or other operational instructions and the literal and non-literal expressions of ideas that operate, cause, direct, manipulate, access or otherwise effect (i) the Branded Pages; (ii) the Services; or (iii) any other intellectual property owned by HealthAware, including copyrighted and trademarked materials contained in the HealthAware website or websites provided by HealthAware that are accessible through the domain name provided by the Company (the “Site”), and any documentation materials that are contained in or related to the items listed in this section (c); (d) all creative concepts, models, designs and ideas employed by HealthAware in performing the Services and any finding, invention, improvement, or discovery, either alone or jointly, whether or not patentable, that is conceived or reduced to practice by HealthAware during the term of Agreement(s); (e) any and all subsequent modifications, revisions, updates, releases, refinements, improvements, enhancements, and derivative works based on any of the foregoing no matter how or when created; and (f) any intellectual property rights in any of the foregoing (“HealthAware Property”). To the extent our reports or other documents delivered to Company contain HealthAware Property, we grant Company a non-exclusive, non-assignable, royalty-free license to use it in connection with the subject of the engagement for the Term of Agreement(s).

1.1 Suggestions: If Company provides or communicates to HealthAware any ideas, information, new features, functionality or performance suggestions related to the Services, including additional information, questions, features, or functionality related to the Services (“Suggestions”), HealthAware may use and incorporate such Suggestions into the Services as applicable. Company acknowledges that the intellectual property created by HealthAware’s incorporation of such Suggestions into the Services will be the sole and exclusive property of HealthAware and all such Suggestions will be free from any confidentiality restrictions that might otherwise be imposed upon HealthAware pursuant to the terms of Agreement(s); provided, however, that Suggestions shall not include any Company patient information or other Company Confidential Information. In addition, HealthAware may use information provided by Company System for the purpose of improving, maintaining and supporting the Services and otherwise providing the Services to Company under Agreement(s), provided that HealthAware uses such information in accordance with the terms of Agreement(s).

1.2 Ownership of Company Content: As between the Parties, Company will retain sole and exclusive ownership of all rights, title and interest in all corporate materials, including its domain name, Company logos and trademarks (“Marks”) provided by Company to HealthAware in accordance with Agreement(s) (“Company Content”). The term “Marks” does not include certain domains owned or licensed by HealthAware from third parties for the provision of Services under Agreement(s); and (b) any intellectual property rights in any such domains. To the extent and solely to the extent that HealthAware makes any modifications to Company Content in connection with its performance hereunder, and subject to other provisions herein, HealthAware hereby irrevocably assigns all right, title and interest in and to such modifications to Company. In the event that any such modifications cannot be assigned, HealthAware hereby grants to Company a perpetual, royalty-free, non-exclusive, assignable, sublicenseable, and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform such modifications.

2.0 Confidentiality & Information Security:
2.1.1 Definition: “Confidential Information” means all confidential or proprietary information disclosed by one Party (“Discloser”) to the other Party (“Receiver”) relating to or disclosed in the course of the performance of Agreement(s). Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Receiver to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself.

2.1.2 Protection of Confidential Information: Receiver will not use any Confidential Information of Discloser for any purpose not expressly permitted by the Agreement and will disclose the Confidential Information of Discloser only to the employees or contractors or consultants or advisors of Receiver who have a need to know such Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than Receiver’s duty hereunder. Receiver will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiver protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

2.1.3 Exceptions: Receiver’s obligations with respect to any Confidential Information of Discloser will terminate if such information: (a) was already known to Receiver at the time of disclosure by Discloser; (b) was disclosed to Receiver by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Receiver has become, generally available to the public; or (d) was independently developed by Receiver without access to, or use of, Discloser’s Confidential Information. In addition, Receiver will be allowed to disclose Confidential Information of Discloser to the extent that such disclosure is (i) approved in writing by Discloser, or (ii) required by law or by the order of a court or similar judicial or administrative body, provided that Receiver notifies Discloser of such required disclosure promptly and in writing (unless prohibited by a government regulator or agency) and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

Notwithstanding the foregoing, any Data that has not been “de-identified” as that term is defined under 45 CFR 164.514 of the HIPAA Privacy Rule shall always be deemed to be Confidential Information, and the treatment of such Data by either Party shall comply with all applicable laws.

2.1.4 If access to any of the materials in HealthAware’s possession relating to a Service Agreement is sought by a third party, or HealthAware is requested or compelled to testify as a fact witness in any legal proceeding related to HealthAware’s work for Company, by subpoena or otherwise, or HealthAware is made a party to any litigation related to HealthAware’s work for Company, HealthAware will promptly notify Company of such action, and either tender to Company’s HealthAware defense responding to such request and cooperate with Company concerning HealthAware’s response thereto or retain counsel for HealthAware’s defense for which Company shall reimburse HealthAware for all reasonable attorney’s fees and costs of defense, unless the purpose of the legal proceeding is due to the proven fault of HealthAware.

3.0 License Grant by Company: Subject to the terms of Agreement(s), Company hereby grants to HealthAware a limited, non-exclusive, non-transferable, non-sublicensable license which is valid until the expiration or termination of Agreement(s), to: (a) reproduce the Company Content and Marks and modify it to the extent necessary to create the Branded Pages in accordance with Company’s Branding policies and Company’s directions; and (b) to use Company Content as required to perform its obligations under Agreement(s). Company further grants to HealthAware a limited, non-exclusive, non-transferable, non-sublicensable royalty-free license to use all Data solely as required to perform its obligations under Agreement(s).

3.1 License Grant by HealthAware: Subject to the terms of Agreement(s), HealthAware hereby grants to Company a limited, non-exclusive, non-transferable (except as permitted in the section below titled No Assignment), non-sublicensable license to: (a) access and use the Services solely in accordance with the terms of Agreement(s); (b) make a reasonable number of copies of documentation provided to Company by HealthAware and relating Solely to the Services and solely for Company’s internal use in connection with the Services; and (c) market the Branded Pages and Services and provide access to the Branded Pages and Services to visitors to the Company’s website; provided that Company may not distribute, sublicense, or otherwise convey any rights in the Services, except as in accordance with Agreement(s) (collectively, the “Company License”.)

The Company License does not extend beyond the current affiliates associated with the Company except to the extent agreed in writing by the Parties. HealthAware has the right to impose additional fees (i) if Company undergoes a material increase in its size, as a result of acquisition or otherwise; and (ii) if Company provides or causes unauthorized access to HealthAware Property. Company agrees that it is licensed to use the Company License in object form only and only behind HealthAware’s firewall or via secure access to web applications hosted by HealthAware. The Company License is valid until the expiration or termination of Agreement(s) and only on the Site (or as otherwise agreed in writing by the Parties). Company may not modify any HealthAware Property, except to the extent permitted in writing by HealthAware.

Upon the effective date of expiration or termination of Agreement(s), the Company License shall terminate immediately except to the extent appropriate for HealthAware’s archival needs. After expiration or termination, each Party shall use reasonable efforts to remove any representations of or references to the Branded Pages from publicly accessible caches, indexes, archives or search engines. HealthAware shall immediately cease use of Marks upon termination of Agreement(s).

3.2 License Restrictions: Company will not (a) copy or duplicate the Services; (b) reverse engineer or access the Services to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services; (c) modify the Services, any documentation provided by HealthAware, or any logos or trademarks of HealthAware or create any derivative product from any of the foregoing, except with the prior written consent of HealthAware, provided that Company’s mere use of the Services on its website in accordance with Agreement(s) shall not be considered a violation of the foregoing; or (d) except as permitted in the section below titled No Assignment; license, use, access, assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey the Services, or pledge as security the Company’s rights under the licenses granted in Agreement(s). Company acknowledges that Agreement(s) grants certain rights to access the Services, as hosted by HealthAware, but nothing herein may be construed to require delivery of a copy of any of HealthAware’s software to Company or to grant Company any right to obtain such a copy.

4.0 Warranties and Disclaimers: Warranties by Both Parties: Each party warrants that it has full power and authority to enter into and perform Agreement(s), and the person signing Agreement(s) on such party’s behalf has been duly authorized and empowered to enter into Agreement(s). HealthAware warrants that (1) the Services will be performed in a timely, professional and commercially reasonable manner in accordance with industry standards and the terms of Agreement(s); (2) the Services and use thereof by Company in accordance with Agreement(s) does not infringe any patent, trademark, copyright, or other intellectual property right; and (3) the Services do not contain any virus, worm, Trojan horse, hacker, or other malicious code that could damage Company, Company’s data, or Company’s technology.

Disclaimer of Warranty: The express warranties in Agreement(s) are in lieu of all other warranties, whether express, implied, or statutory, regarding the Services, including any warranties of merchantability and fitness for a particular purpose. Company acknowledges that it has relied on no warranties other than the express warranties in Agreement(s). HealthAware cannot guarantee or assure the achievement of any particular performance objective, nor can HealthAware guarantee or assure any particular outcome for Company or any other person as a result of Agreement(s) or the performance of the Services. Company understands that it retains final responsibility for its own compliance with applicable laws, regulations, settlement agreements and other obligations imposed by federal or state oversight agencies and that Company cannot transfer or delegate any such responsibility to HealthAware. Company understands that HealthAware has not and cannot make any guarantee or warranty that Company’s use of the Services will be in compliance with all applicable laws, regulations or other obligations during the term of Agreement(s). Company agrees that HealthAware’s provision of Services does not include all matters that might be pertinent or necessary to Company’s compliance with applicable laws and regulations and HealthAware cannot be relied on to detect illegal acts (other than any failure of HealthAware to comply with applicable law), such as fraud, should they exist.

4.1 Services Disclaimer: The Services provided by HealthAware are not medical services of any kind. The information contained in, and provided by, the Services is for the personal use of participants only, and is not intended to diagnose, cure, mitigate, treat or prevent disease or other conditions and is not intended to provide a determination or assessment of a participants state of health. Participants should always consult a licensed healthcare professional such as a family physician or specialist to make healthcare decisions or before starting any diet or exercise program. Company’s healthcare professionals should not use the Services as a substitute for physical examinations, diagnostic evaluations, obtaining individual medical histories, or to diagnose, cure, mitigate, treat or prevent disease or other conditions or to determine or assess a participant’s state of health. HealthAware will not be held responsible or liable for any costs or damages related to the use of any information provided from the Services.

5.0 Indemnification: Each Party shall fully indemnify, hold harmless and defend (collectively “indemnify” and “indemnification”) the other Party and its directors, officers, employees, agents, and affiliates (collectively, “Indemnified Parties”) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs) (“Losses”), involving a third party claim, which arise out of or relate to (a) a breach of any representation or warranty of the indemnifying Party (the “Indemnifying Party”) contained in Agreement(s); (b) a breach or violation of any covenant or other obligation or duty of the Indemnifying Party under Agreement(s) or under applicable law; (c) the negligence or willful misconduct of the Indemnifying Party; or (d) the Indemnifying Party’s infringement of any trademarks, copyrights, U.S. Patents of a third party or any other third party intellectual property right or misappropriation of any trade secrets of a third party, except to the extent any such Losses are due to the fault of the Indemnified Party.

The Indemnified Parties seeking indemnification will notify the Indemnifying Party of any claim subject to an indemnification obligation and will cooperate with and provide reasonable assistance to the Indemnifying Party (at the Indemnifying Party’s expense) in the defense or settlement of any claim, provided that the Indemnified Parties may, at their own expense, retain separate representation. The Indemnifying Party has the right to control the defense or settlement of any claim, provided, however, that Indemnifying Party will not enter into any compromise or settlement which does not include a complete release of all claims against the Indemnified Parties regarding the matter which is the subject of the claim.

5.1 Limitation of Liability:
EXCEPT AS PROVIDED BELOW, THE TOTAL LIABILITY OF HEALTHAWARE AND ITS SUBSIDIARIES, OFFICERS, EMPLOYEES AND AGENTS FOR ALL CLAIMS AND OBLIGATIONS OF ANY KIND ARISING OUT OF THIS ENGAGEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO TWO HUNDRED FIFTY THOUSAND $250,000 DOLLARS. EXCEPT AS PROVIDED BELOW, NEITHER HEALTHAWARE NOR COMPANY SHALL IN ANY EVENT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF DAMAGES IN AGREEMENT(S) SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIBATIONS UNDER AGREEMENT(S), A PARTY’S BRACH OF CONFIDENTIALITY, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

6.0 Restriction on Use of Personnel: The Parties agree that during the Term of Agreement(s) (including any renewals or extensions thereof), and for a period of one year following its termination (“Restriction Period”), neither Company nor HealthAware nor any affiliate, parent or subsidiary thereof will knowingly employ or engage as an independent contractor, consultant or otherwise, any person who, during the Restriction Period, is or was an employee or independent contractor of the other Party and who worked on this engagement. Notwithstanding the foregoing, this restriction shall not apply to an employee of one Party’s response to a general employment opportunity advertisement of the other Party or if a third-party recruiter, employment agency or similar entity refers a Party’s employee to the other Party.

6.1 Use Restrictions: HealthAware shall use the Marks in conformance with Company’s trademark usage policies or directions as communicated in writing to HealthAware from time to time.

7.0 Company’s Affiliates: Company may not use or permit the use of the Services or the Branded Pages beyond the current affiliates associated with the Company without HealthAware‘s prior written consent, which consent may be withheld in HealthAware’s sole discretion and which may be contingent on Company’s payment of additional fees for such use, which amount shall be in HealthAware’s sole discretion.

8.0 Disposition of Documents: Upon termination of Agreement(s), Company will have several options with respect to disposition of documents related to the engagement that HealthAware does not wish to retain in its files and that HealthAware is not required to retain in its files pursuant to applicable law. Company can (a) direct HealthAware to return all such documents to Company, where practicable; (b) authorize HealthAware to discard or destroy such documents; or (c) direct HealthAware to store any or all such documents at the expense of Company. If Company does not request one of these options for the disposition of materials within sixty (60) days after termination of Agreement(s) and written notice from HealthAware, HealthAware may implement (a) or (b) above. HealthAware will have the right to retain a copy of our reports or work papers for our records, subject to the confidentiality obligations under Agreement(s) and the requirements of applicable law.

9.0 Compliance with Laws: Each Party shall comply with all applicable laws, regulations, rules, ordinances and orders regarding its activities related to Agreement(s), including but not limited to laws concerning personally identifiable information, such as the Health Insurance Portability and Accountability Act of 1996 and the Gramm-Leach-Bliley Act of 1999.

10.0 No Assignment: Neither party shall assign, subcontract, delegate, or otherwise transfer it’s Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, which shall not be unreasonably withheld, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign Agreement(s) in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, upon written notice to the other party (“Notice of Assignment”). Should the party receiving the Notice of Assignment object to the assignment of Agreement(s), or any part of it, then such party may terminate Agreement(s) without penalty by providing written notice, within 90 days after receipt of the Notice of Assignment. The terms of Agreement(s) shall be binding upon the parties and their respective successors and permitted assigns. If Company assigns Agreement(s) to an entity of a significantly different size than Company (with respect to number of staffed beds), the parties will work together in good faith to make any necessary adjustments to Agreement(s).

11.0 Severability; Headings: If any provision of Agreement(s) is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect Agreement(s).

12.0 Independent Contractors: The Parties to any Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by Agreement(s). Neither Party may take any actions that are binding on the other Party.

13.0 Notice: Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified in the Agreement or at such other address as the Party shall specify in writing. Unless otherwise specified, such notice shall be deemed given: upon personal delivery; if sent by fax, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing. Acceptance or approvals required hereunder may be made by e-mail to an address to be designated by the Parties.

14.0 Survival: Sections of any Agreement that either give the Parties rights beyond the termination of Agreement(s) or that do not expressly terminate upon the termination of Agreement(s) will survive any termination of the Agreement.

15.0 Intent: The Parties agree that there are no intended third party beneficiaries under Agreement(s).