Business Services Agreement
Terms and Conditions

READ THESE TERMS CAREFULLY BEFORE BROWSING THIS APPLICATION. USING THIS APPLICATION INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS APPLICATION IF YOU DO NOT ACCEPT THESE TERMS.

This Business Services Agreement and the documents attached hereto or incorporated herein by reference (the “Agreement”) describe the relationship between Credible Behavioral Health, Inc. (“Credible“) and the Customer identified below (“Customer“) (each of Credible and Customer, a “Party” and, together, the “Parties”).  The documents comprising this Agreement and incorporated by reference include the Business Services Agreement Terms and Conditions (“BSA Terms and Conditions”), which describe and set forth the general legal terms governing the relationship, the Letter of Intent (“LOI”) and one (1) or more contract amendments (“Amendments”), order forms (“Order Forms”), or schedules, which may be attached or incorporated into the Agreement from time to time, all of which describe and set forth the services provided and the details of the business and commercial terms of the relationship (each an “Addendum” and collectively the “Addenda”).

This Agreement will become effective when LOI is executed by authorized representatives of both Parties or when Customer begins receiving any services referencing or referenced in this Agreement, whichever is first to occur (the “Effective Date”).

1. DEFINITIONS.
Certain capitalized terms, not otherwise defined elsewhere in this Agreement, have the meanings set forth or cross-referenced in this Section
1.
1.1Addendaor “Addendum” as defined on the cover page.
1.2Affiliate“ means, with respect to a particular person (either an individual), another person that directly or indirectly Controls, is Controlled by or is under common Control with that particular person by another person.
1.3Agreement” as defined on the cover page.
1.4 Amendments” means one or more amendments to the Agreement.
1.5 Application” means the web enabled enterprise data management system and mobile/wireless software applications as set forth on Schedule A or other Addendum.
1.6 Application Services” means the Application related services provided by Credible pertaining to Customer’s access to certain content and use of the features and functionality of the Application, solely to the extent set forth and further described in, and as limited by, each Addendum executed by the Parties.
1.7 Application Documentation” means text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Services, which materials are designed to facilitate use of the Application Services and which are provided by Credible to Customer in accordance with the terms of this Agreement.
1.8 Authorized Device” means any mobile, handheld, or laptop computer or device with Credible’s mobile application(s).
1.9 “Billing Services means the billing services to be provided by Credible through an Addendum.
1.10 BSA Terms and Conditions” as defined on the cover page.
1.11 Bug” means (i) an action resulting in an error screen; (ii) a feature not working as it did previously; excluding features enhanced by a Release; and/or (iii) new features not working per Configuration Notes description.
1.12 Competitor” is any person or entity who has an ownership interest in, serves as a manager or director of, or is engaged or employed by or in a Competing Business or its Affiliate.
1.13 Competing Business” means the business of developing, marketing, distributing, licensing, offering or selling software and related services to behavioral health care providers, delivering digital solutions to facilitate clinical treatment, scheduling, billing, forms management, e-prescribing, electronic communications with laboratories, mobile/field, reporting, data management or related functions.
1.14 Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding its disclosure would reasonably be expected to be treated as confidential. Without limiting the foregoing, for purposes of this Agreement, the Application, Documentation and all Addenda will be deemed Confidential Information of Credible. In addition, Confidential Information shall include the terms of this Agreement.
1.15 Control” means the ability to direct the management and policies of another person, either through ownership, by contract, or by law.
1.16 Customer” means the entity or individuals identified on the signature page of this Agreement. For avoidance of doubt, “Customer” shall not include its corporate parent, subsidiary, or any other Affiliate.
1.17 Customer Content” means the data, media and content provided by Customer through the Services.
1.18Effective Date” as defined on the cover page.
1.19 LOI” means the Letter of Intent executed by Customer and incorporated into this Agreement by reference or attached hereto as Schedule A (and the LOI also may be referred to below as Schedule A).
1.20 Order Form” means a document signed by both Parties identifying a given type of Service to be made available by Credible pursuant to this Agreement.Each Order Form shall be agreed upon by the Parties as set forth in Section 2.1.
1.21Party” or “Parties” as defined on the cover page.
1.22 Services” mean the Application Services, Billing Services or other services agreed to by the Parties pursuant to an Addendum.

2. TERMS OF ACCESS AND USE.
2.1  Services.  The Services to be provided by Credible under this Agreement will be set forth in the Addenda and any other Amendment, Order Form, or LOI executed by the Parties and referencing and incorporating the terms of this Agreement from time to time during the Term. The Parties will negotiate and sign each Addendum, Order Form, and/or LOI separately.  Each Addendum, Order Form, and/or LOI shall set out a description of the applicable Services to be provided by Credible and the costs associated with such Services.  For the avoidance of doubt, in the event of a conflict between any of the BSA Terms andConditions, on the one hand, and Schedule A or any other Addendum, on the other hand, the BSA Terms and Conditions shall control, including with respect to Sections 8 through 11 hereunder (respectively, Disclaimers, Exclusions, and Limitations of Liability; Indemnification; Term and Termination; and Miscellaneous).
2.2  Provision of Access.  On or as soon as reasonably practicable after the Effective Date, Credible shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services (the “Access Protocols”). Customer is solely responsible for maintaining the security of all passwords and network links or connections granted to it and for the security of its information systems to access the Services. Credible shall also provide Customer access to the Application Documentation during training to be used by Customer in accessing and using the Services.
2.3  Exclusions. Credible is not obligated to correct any errors or provide any other support to the extent such errors or need for support was created in whole or in part by: (i) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the Services or its operating environment; (ii) any failure or defect of Customer’s or third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Credible’s point of presence); or (iii) Customer’s use of the Services other than in accordance with the Application Documentation.
2.4 Usage Restrictions.  Customer will not: (i) copy or duplicate the Application; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify any Services, Application or the Application Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of Credible’s CEO; (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber Customer’s rights under this Agreement, including any right to use the Application; (v) permit or enable any unauthorized users (including any Competitor or any users who are not appropriately authorized under applicable laws, including, for example, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)) to access Customer Content via the Application or Credible’s intellectual property or Services; or (v) use the Services in violation of any applicable law, rule or regulation. Customer will ensure that its use (including the use by its employees, independent contractors, and clients) of the Services and the Application Documentation complies with all applicable laws, statutes, regulations or rules; or (vi) permit access to or use of the Services by any individual who owns or is employed by, engaged by, or otherwise involved in a Competing Business; or (vii) access or use the Services, or permit access to or use of the Services, to build a similar or competitive product or assist or benefit a Competitor or Competing Business in building a similar or competitive product.  Customer shall have access to the Customer Content and shall be fully responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required to access the Application Services.
2.5  Retained Rights; Ownership.
(a)  Except for the rights specifically granted to Customer under this Agreement, Credible retains all right, title and interest in and to the Application, Services and the Application Documentation, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.  Customer further acknowledges that Credible retains the right to use the foregoing for any purpose in Credible’s sole discretion.
(b)    Except for the rights specifically granted to Credible in this Agreement, Customer retains all right, title and interest in and to the Customer Content, and Credible acknowledges that it neither owns nor acquires any additional rights in and to the Customer brand or Customer Content not expressly granted by this Agreement. Credible further acknowledges that Customer retains the right to use the Customer brand and Customer Content for any purpose in Customer’s sole discretion.  Subject to the foregoing, Customer hereby grants to Credible a non-exclusive, non-transferable right and license to use the Customer Content during the Term for the limited purposes of performing Credible’s obligations hereunder, subject to the terms of the HIPAA Business Associate Addendum executed by the Parties.
2.6    Business Associate Agreement.  The Parties acknowledge that as part of the Services provided by Credible, Credible may perform or assist in performing a function or activity on Customer’s behalf that involves the use and/or disclosure of Protected Health Information (“PHI”) (as defined in 45 C.F.R. 164.501). To the extent applicable (and if the “HIPAA Business Associate Addendum box is checked on the Cover Page), the Parties agree to enter into a separate Business Associate Agreement (“BAA”) that will govern any PHI use and/or disclosure, in accordance with the HIPAA Business Associate Addendum.

3. CREDIBLE OBLIGATIONS.
3.1  Implementation Plan; Access Term.  Customer understands and acknowledges that, before access to the Services can be provided to Customer: (i) Customer’s systems may require supplementation, modification, installation or configuration and, in any case, will require the performance of various professional services to prepare Customer’s systems for such purposes; and (ii) that Credible’s systems also may require preparation in order to make available such access for Customer’s particular systems as contemplated hereunder.
3.2  Support Services; Initial Training. Credible will provide support services in accordance with its standard policies and procedures, provided that Customer has paid all amounts due and payable under this Agreement, and further provided that Credible will have no obligation to provide support to Customer with respect to: (i) use of the Services other than according to the Application Documentation or the terms of this Agreement; (ii) any modification of the Services, the Application, or the Application Documentation by Customer or any third party; or (iii) any combination of the Services and/or the Application with hardware, software, or technology not provided by Credible. Credible will make available training services to a limited number of Customer personnel as described in the LOI.
3.3  Application Services; Credible Uptime Commitment.  Credible is committed to 99.0% uptime for the Application, excluding four (4) hours for each quarterly release, a monthly maintenance window not to exceed a total of four (4) hours in a calendar month, and down time out of Credible’s control (i.e. Customer ISP, national backbone, carrier router, failure of hosting provider, etc.).  If this uptime commitment is not met, as Customer’s sole remedy and Credible’s sole liability, upon Customer’s written request, Credible may credit one month’s hosting fee in the immediate subsequest billing cycle.
3.4  Credible and Customer Support Procedures.  Credible will follow the support procedures outlined in Schedule B, as the same may be updated or revised from time to time.
3.5 Credible Billing Module Updates. Credible will make changes to the Billing Module for documented funder/payor requirements that are not in conflict with Federal or State guidelines and laws. There will be fees for medical billing clearinghouse-required changes where Credible has enabled Customer to bill directly to a payor. Credible requires 180 days’ notice for any State and payor documented changes, after Credible receives verified specifications. Significant state/payer changes require nine (9) to twelve (12) months; minor changes require one hundred and eighty (180) days.

4. CUSTOMER OBLIGATIONS.
4.1  Authorized Access to Application and Services.  Subject to the terms and conditions herein and as permitted by applicable law, Customer’s employees may access the Application via browser or secure handheld devices that are specifically supported by Credible. The list of supported browsers and devices is set forth in the Application, as updated from time to time.  If Customer retains the services of one or more consultants or independent contractors, Customer must submit via certified letter an authorization notice granting Credible the right to work with each of Customer’s authorized consultant and/or independent contractor(s). Customer will not retain the services of any Competitor or its Affiliate and Customer shall not allow any such Competitor or its Affiliate to access, directly or indirectly, the Application, Application Documentation or Services.
4.2  Assistance to Credible.  Customer, at its own expense, will provide Credible access to and use of Customer facilities, equipment, information, and assistance from Customer personnel, to the extent any of the foregoing may be reasonably necessary to enable Credible to perform its obligations hereunder, including, without limitation, any obligations with respect to support services performed pursuant to Section 3.2.  In addition, Customer will satisfy and perform any obligations and requirements set forth in any Addendum as agreed by the Parties. Customer is responsible for providing the necessary equipment and software to access and use the Services, as directed by Credible, and to the extent Customer does not comply with such directions and recommendations by Credible (including for example, by using a “thin client”, rather than using a web browser to access the Services), Customer acknowledges and agrees that Customer may experience difficulties with access to or use of the Services, and Credible will not be liable for such difficulties. Customer acknowledges and agrees any failure or delay of Customer to provide such assistance may result in Credible’s failure or delay to provide the Services.
4.3 Customer Support Procedures.  Customer will follow the support procedures outlined in Schedule B, as the same may be updated or revised from time to time.
4.4 Customer Users.  Customer takes full responsibility for the acts or omissions of all individuals using its user credentials and passwords (other than Credible employees).  Any user that is not a direct employee of Customer must be identified to Credible in writing by Customer and must execute a Non-Disclosure Agreement approved by Credible. In addition, Customer recognizes Credible’s need to create test users in Customer’s domain.  Customer will not be billed for these tests users.
4.5 Non-Profit Tax Exempt Certificates.  Customer shall provide Credible with copies of all of its tax exempt certificates, if any, upon signing this Agreement.

5. FEES, EXPENSES AND PAYMENTS.
5.1  Fees.  In consideration for the licenses granted to Customer and the Services performed by Credible under this Agreement, Customer will pay to Credible, without offset or deduction, all fees or other amounts required under Schedule A or the applicable Order Form, Amendment, or other Addendum. Unless otherwise set forth in Schedule A or the applicable Order Form, Amendment or other Addendum: (a) the full amount of any one-time fees are due and payable to Credible upon execution of the relevant Addendum, (b) monthly recurring charges will be billed and due in advance of the provision of the applicable Service, (c) each invoiced amount will be due and payable upon receipt of the relevant invoice by Customer, and (d) all fees will increase 2.5% annually beginning the 24thmonth after the first “Go Live” (as defined in the LOI).  Upon expiration of the initial Term (as defined in Section 10.1), fees may be adjusted by Credible upon 12 months’ written notice.  Customer will additionally pay any amounts required by any Addendum attached to the Agreement.
5.2  Customer Operating Expenses.  Customer will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, use by Customer of the Application Services directly or through Authorized Devices, and/or through provision of support to Authorized Devices with respect to such use of the Application Services. Customer will also pay any other expenses described in the LOI or any other Addendum.
5.3  Taxes.  All amounts payable to Credible exclude applicable sales, use, withholding or any other taxes, and all applicable export and import fees, customs duties and similar charges (collectively, “Taxes”).  In addition to amounts payable under Section 5.1, Customer is responsible for payment of any such Taxes (other than taxes based on Credible’s income), and any related penalties and interest, arising from the payment of any fees under this Agreement, the grant of license rights hereunder, or the delivery of services.  Customer will make all required payments to Credible free and clear of, and without reduction for, any Taxes.  Any such Taxes imposed on payments to Credible are Customer’s sole responsibility, and Customer will, upon Credible’s request, provide Credible with official receipts issued by the appropriate taxing authorities, or such other evidence as Credible may reasonably request, to establish that such Taxes have been paid or an appropriate exemption from payment is in effect as required pursuant to Section 4.5.  Customer shall also provide Credible with copies of all its tax exempt certificates upon signing this Agreement.
5.4  Collection; Suspension of Services.  Any account more than thirty (30) days past due will be charged interest from the due date of the lesser of (i) 1.5% per month on the past due amount, or (ii) the highest legal rate of interest.  Credible may suspend, interrupt or cancel Services on any account that is forty-five (45) days past due.  Suspension shall follow the delivery of a notice issued by Credible in accordance with Section 11.3 to Customer stating that Services will be suspended in ten (10) business days unless all past due amounts are paid in full.  Once Services are suspended, upon login users will see the following message: “Your services have been suspended for lack of payment.”  All data will remain secure and all other appropriate terms will be honored.  No additional Services will be provided until all invoices are paid.  Customer must pay Credible a reconnection fee of $2,500 as a condition of reactivation, in addition to full payment of the balance due on the Customer account.  If Customer is delinquent on any payment, Credible may modify payment terms to require full payment before the provision of any Services.  Customer is responsible for paying all costs of collection, including but not limited to attorneys’ fees and collection agency fees, where lawful.
5.5  Payment Disputes. If Customer disputes any fee or other payment then due and payable to Credible, or any portion thereof, in good faith (a “Payment Dispute”), then Customer shall pay the entire undisputed portion of such fee or other payment in full when due and shall provide Credible with a written notice of the Payment Dispute within fifteen (15) days after receipt of the invoice or other payment request. Customer shall state in the written notice the amount in dispute and shall provide an explanation in sufficient detail to support its position in order to enable Credible to investigate the Payment Dispute. Thereafter, the Parties will attempt in good faith to resolve the Payment Dispute before taking further remedial action. Customer shall not make any offset or deduction from any amount due under this Agreement except in compliance with the procedures as set forth in this Section 5.5.

6. TREATMENT OF CONFIDENTIAL INFORMATION.
6.1  Ownership of Confidential Information.  The Parties acknowledge that during the performance of this Agreement, each Party will have access to the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.  Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
6.2  Mutual Confidentiality Obligations.  Each Party agrees: (i) to use Confidential Information disclosed to it by the other Party only to exercise its rights as described herein or to perform the Services; (ii) to hold in confidence and protect the Confidential Information disclosed to it by the other Party using at least the same level of care as it uses to protect its own Confidential Information; (iii) not to create any derivative work from Confidential Information disclosed to such Party by the other Party, unless expressly authorized under this Agreement; (iv) to restrict access to the Confidential Information disclosed to it by the other Party to its personnel, agents, and/or consultants/contractors, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; provided, however, that Customer shall not in any case disclose any Confidential Information to any Competitor, as that terms is defined in Section 1, regardless of whether the Competitor is, or is employed or engaged by, Customer or an Affiliate; and (v) to return or destroy, pursuant to Section 10.5, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.  Notwithstanding the foregoing, Credible may retain archival copies of Confidential Information and Customer Content as needed to perform its obligations under Section 10.5, as needed to comply with applicable laws or regulations, or if Confidential Information is archived or stored on secure media or tapes and cannot be readily deleted from such media or tapes.  In such event, Credible will continue to comply with its confidentiality obligations pertaining to such Confidential Information and Customer Content.
6.3  Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or generally known to the public at the time disclosed; (ii) is or becomes publicly available or generally known to the public through no fault of or breach of this Agreement by the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto prior to the time of disclosure by the disclosing Party; (v) is developed by the recipient independently of and without reference to any information communicated to recipient by the disclosing Party; or (vi) is approved for release or disclosure by the disclosing Party without restriction.  In addition, either Party may disclose Confidential Information to the limited extent necessary: (A) in response to a valid order of a court or other governmental body having jurisdiction or pursuant to an applicable law or regulation, provided that the Party required to make such a disclosure pursuant to the order: (x) will have given notice to the other Party upon receipt of such order and/or in advance of such disclosure; and (y) made a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the court order was issued; or (B) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

7. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

8. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
8.1  Disclaimer.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY EPRESCRIBING INTERFACE MODULE), THE APPLICATION DOCUMENTATION, AND ALL SERVICES ARE PROVIDED “AS IS” BY CREDIBLE AND CREDIBLE DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. CREDIBLE DOES NOT WARRANT THAT THE APPLICATION, DOCUMENTATION, OR ANY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8.2  Special Disclaimer for electronic prescription services Interface Module.  Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that if Customer has ordered electronic prescription services, then Credible will facilitate electronic prescriptions through the Application Services, but that the actual transmission of electronic prescriptions is completed through a third party and not by Credible.  Credible makes no warranties regarding the transmission of such prescriptions and cannot guarantee or warranty the actual delivery of the prescriptions or that the operation of the ePrescribing interface module will operate without errors or in an uninterrupted manner.   In no event shall Credible be liable for the content of a prescription, the delivery or non-delivery of a prescription or if the operation of the ePrescribing interface module is not uninterrupted or error free.  Customer will obtain a proper HIPAA-compliant “Release of Information” for each client prior to activating pharmacy benefit management (“PBM”) medication history functionality.  Information presented through Credible eRx™ with regard to formularies, eligibility, and medication history is in fact data transmitted by pharmacies and/or PBMs and may or may not be accurate. Notwithstanding the foregoing, in the event that Customer notifies Credible of an error in the transmission of an electronic prescription, Credible will use commercially reasonable efforts to diagnose and remedy the error and, upon Customer’s request, re-perform any affected Services. In the event that such commercially reasonable efforts are not successful, then Customer shall be entitled to a refund of any payment for the portion of the Services that were not successfully re-performed.
8.3  Special Disclaimer for Business Intelligence Interface Service Module.  Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that if Customer has ordered the Business Intelligence module, Credible facilitates the Business Intelligence module through the Application Services, but that the actual transmission of these modules are completed through a third party and not by Credible.  Credible makes no warranties regarding the transmission of such modules and cannot guarantee or warranty the actual delivery of these modules or that the operation of the interface modules will operate without errors or in an uninterrupted manner.  Notwithstanding the foregoing, in the event that Customer notifies Credible of an error in the transmission of any Business Intelligence module, Credible will use commercially reasonable efforts to diagnose and remedy the error and, upon Customer’s request, re-perform any affected Services. In the event that such commercially reasonable efforts are not successful, then Customer shall be entitled to a refund of any payment for the portion of the Services that were not successfully re-performed.
8.4  Special Disclaimer for Labs Interface Service Module.  Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that if Customer has ordered the Labs module, Credible facilitates the Labs module through the Application Services, but that the actual transmission of these modules are completed through a third party and not by Credible.  Credible makes no warranties regarding the transmission of such module and cannot guarantee or warranty the actual delivery of this module or that the operation of the interface module will operate without errors or in an uninterrupted manner.  In no event shall Credible be liable for the content of the Labs module, the delivery or non-delivery of this module or if the operation of this interface module is not uninterrupted or error free.  Notwithstanding the foregoing, in the event that Customer notifies Credible of an error in the transmission of any Labs module, Credible will use commercially reasonable efforts to diagnose and remedy the error and, upon Customer’s request, re-perform any affected Services. In the event that such commercially reasonable efforts are not successful, then Customer shall be entitled to a refund of any payment for the portion of the Services that were not successfully re-performed.
8.5  Special Disclaimer for Billing Services.  Credible’s Billing Services are dependent upon Customer’s proper performance of its responsibilities relating to the Billing Services (including, without limitation, Customer’s staff completing all required training, testing processes and the agreed upon Out-Sourced Billing Work Plan) and upon the accuracy of data provided to Credible. Credible is not obligated to validate the accuracy of Customer’s prior billing practices or any data provided in relation thereto. Credible will not be liable for any failure or delay arising from or related to Customer’s failure to perform its obligations or any inaccurate Customer data relating to the Billing Services.  Credible will maintain and retain Billing Service-related data in its possession or control in accordance with its then current document retention policies, which are available upon request, and provide a copy of such data to Customer upon request.  Customer is solely responsible for maintaining and storing billing related data as required in connection with its business and applicable laws and regulations relating to its business.
8.6  Exclusions of Remedies; Limitation of Liability.  EXCEPT WITH RESPECT TO LIABILITY  ARISING FROM A BREACH UNDER SECTION 6, IN NO EVENT WILL CREDIBLE BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF CREDIBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  THE CUMULATIVE LIABILITY OF CREDIBLE TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT (AND LOI OR OTHER ADDENDUM), INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICTLIABILITY, WILL NOT EXCEED: (i) FOR THE FIRST NINE (9) MONTHS FOLLOWING THE EFFECTIVE DATE, THE TOTAL OF ALL FEES PAID TO CREDIBLE BY CUSTOMER FOR THE PARTICULAR APPLICATION, SERVICE, AMENDMENT, ORDER FORM OR SCHEDULE A GIVING RISE TOLIABILITY; OR (ii) FOR THE TIME PERIOD AFTER THE FIRST NINE (9) MONTHS FOLLOWING THE EFFECTIVE DATE, TWO HUNDRED THOUSAND DOLLARS ($200,000). THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY IN THE AGGREGATE FOR ALL CLAIMS AND WITHOUT REGARD TOWHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.7  Essential Basis of the Agreement.  Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 8 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the fees, terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the fees, terms and conditions of this Agreement would be substantially different.

9. INDEMNIFICATION.
9.1  Indemnification of Customer. Credible agrees to indemnify, defend and hold harmless Customer from and against any and all claims by any third party that any of the Services, Application, or the Application Documentation infringes such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that Customer promptly notifies Credible in writing of the claim, cooperates with Credible, and allows Credible sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Customer agrees to permit Credible, at Credible’s sole discretion, to enable it to continue to use the Services, Application, Application Documentation or the Credible brand, as applicable, or to modify or replace any such infringing material to make it non-infringing.  If Credible determines that none of these alternatives are reasonably available, Customer shall, upon written request from Credible, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.  This Section 9.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Services, the Application, or the Application Documentation by anyone other than Credible, (ii) combination, operation or use of the Services, Application, or Application Documentation with other services, software, hardware, technology, or intellectual property not provided by Credible, or (iii) use of a superseded or altered release of the Services, Application, or the Application Documentation, if such infringement would have been avoided by the use of a then-current release of such Services, Application or Application Documentation, as applicable, and if such then-current release has been made available to Customer (any of the foregoing circumstances under clauses (i), (ii) or (iii), a “Customer Indemnity Responsibility”).  IN NO EVENT SHALL CREDIBLE’S LIABILITY UNDER THIS SECTION 9 EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY CUSTOMER UNDER SECTION 5.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.  THIS SECTION STATES CREDIBLE’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
9.2  Customer’s Indemnity Obligations.  Customer agrees to hold, harmless, indemnify, and, at Credible’s option, defend Credible from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Customer’s negligence or willful misconduct; (ii) use of the Services or Application in violation of this Agreement or any law, regulation or rule; (iii) any prescriptions transmitted or otherwise submitted through the electronic prescription services;  (iv) a Customer Indemnity Responsibility; or (v) Customer’s relationship with its payors, providers, patients, clients and other third parties (including without limitation billing disputes), provided that Customer will not consent to the entry of a judgment or settle any third-party claim against Credible unless Credible consents to such settlement or entry of a judgment or unless such settlement completely and forever releases Credible from all liability with respect to such claim without admission of any violation or wrongdoing, and further provided that Credible will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

10. TERM AND TERMINATION.
10.1  Term.  The term of this Agreement starts on the Effective Date and will continue for so long as there is at least one active LOI (and any response to a Request for Proposal incorporated into an LOI), Order Form, Amendment or other Addendum in effect between the Parties, unless earlier terminated in accordance with this Section 10.  The initial term of each LOI (“Initial Term”) will be a period of seven (7) years after the first “Go Live” under that LOI, except as otherwise provided in that LOI or unless the applicable Services thereunder are earlier terminated in accordance with this Section 10.  Each LOI will automatically renew for successive three (3)-year terms (each a “Renewal Term”), unless otherwise provided therein or unless either Party provides written notice of its desire not to renew at least one hundred and eighty (180) days prior to the expiration of the then-current term of the LOI. The initial term, together with any Renewal Terms, are collectively referred to as the “Term”. Additionally, Customer must provide one hundred and eighty (180) days’ written notice of intent to terminate any Module(s).
10.2  Termination for Breach.  Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party that is not cured (if curable) as described below.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching Party will have a right to cure such breach or breaches (if curable) within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period. If a breach is not curable, then the non-breaching Party may terminate this Agreement upon delivery of notice of termination to the breaching Party.
10.3  Termination Upon Bankruptcy or Insolvency.  Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
10.4  Termination for Link with Competing Business.  Customer shall immediately notify Credible in writing upon becoming aware that either of the following events is likely to occur, and in any event, at least thirty (30) days prior to the closing of any such transaction: (i) if Customer, its employees or independent contractors (including vendors or suppliers), or any of its or their Affiliates, directly or indirectly acquires an ownership interest in or Control of a Competing Business; or (ii) a Competing Business or any of its Affiliates directly or indirectly acquire an ownership interest in or Control of Customer, its employees or independent contractors (including vendors or suppliers), or any of its or their Affiliates. Upon receipt of notice from Customer, Credible may terminate this Agreement immediately upon written notice to Customer.
10.5  Effect of Termination.  Upon any termination or expiration of this Agreement, all Addenda also will terminate and Customer will (i) immediately discontinue all use of the Services, Application, the Application Documentation, and any Credible Confidential Information; (ii) delete any Credible Confidential Information from Customer’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) return to Credible or, at Credible’s option, destroy, all copies of the Application and Application Documentation and any Credible Confidential Information then in Customer’s possession; and (iv) promptly pay to Credible all amounts due and payable hereunder.  Customer may choose to purchase secure hosting and read-only access beyond the termination or expiration for an annual prepayment of $15,000 with an annual increase of 3.5% every year. This fee will cover secure hosting and read-only access.  There is no customer support provided for this fee.  Additional customer service can be purchased at the then current standard rate in prepaid blocks of eight hours.  With the exception of purchasing hosting and read-only access, all other language from this paragraph remains in effect and such hosting and read-only access rights are subject to the limitations of liability and disclaimers of this Agreement pertaining to the Services.
10.6  Survival.  The provisions of Sections 2.3, 2.4, 5, 6, 8, 9, 10.4, 10.5, 10.6 and 11 will survive the termination or expiration of this Agreement.

11. MISCELLANEOUS.
11.1  Entire Agreement.  This Agreement, including all Addenda, Amendments, and Order Forms attached hereto or incorporated herein, and any LOI entered into by the Parties which references this Agreement, sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
11.2  Independent Contractors.  In making and performing this Agreement, Customer and Credible are and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them.  Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.
11.3  Notices.  All notices required by or relating to this Agreement will be in writing and will be sent by certified or registered mail (postage prepaid and return receipt requested), or by courier or nationally-recognized overnight delivery service, to the receiving Party at its address set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.  Notice will be effective upon receipt or refusal of delivery.  If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark.  If delivered by courier or nationally-recognized overnight delivery service, any such notice shall be considered to have been given on the delivery date reflected by the courier or delivery service receipt. Any notice required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient.  Such notice will be effective on the date indicated in such confirmation, as long as a duplicated of such notice is delivered promptly thereafter by any of the other means described above, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
11.4  Amendments; Modifications.  This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of each of the Parties.
11.5  Assignment; Delegation.  Customer shall not assign this Agreement or any of its rights hereunder or delegate any of its duties under this Agreement to any third party, including without limitation any corporate parent, subsidiary, or any other Affiliate, without the express, prior written consent of Credible, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
11.6  No Third Party Beneficiaries.  The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their respective successors and permitted assigns.  Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their respective successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.7  Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable in any way whatsoever.
11.8  Waiver.  No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
11.9  Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
11.10  Governing Law.  THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.  FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF MARYLAND.
11.11  U.S. Government End-Users.  Each of the Services, Application, and Application Documentation and the software components relating thereto is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Services, Application, and the Application Documentation with only those rights set forth therein.
11.12  Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
11.13 Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and are not intended to nor will they affect the meaning or interpretation of this Agreement.

[End of Business Services Agreement Terms and Conditions]

SCHEDULE A: Executed Letter of Intent

SCHEDULE B: Credible and Customer Support Procedures

  1. Credible Support
    1. Credible Task Ticket Submission System: Credible’s Task Ticket Submission System is Credible’s online, helpdesk ticketing system.  The system is designed to centrally record and manage Customer requests and communication, which helps ensure that all items are promptly and efficiently documented, assigned, communicated to the appropriate parties, and resolved in a timely and professional manner.  Credible will review Customer’s Recommended Task Priority, and if necessary re-prioritize to the Contract Defined Priority based on the table below.
    2. Credible Normal Business Hours: Credible’s Normal Business Hours are Monday through Friday between the hours of 8:30am to 8:00pm Eastern Standard Time.

SCHEDULE C: Credible’s Escalation Procedures and Guidelines: Credible’s Contract Defined Priorities

SCHEDULE D: Credible Expected Actions

  1. Troubleshoot issues that are documented and submitted via Credible’s Task System in a timely and professional manner.
  2. Alleged bugs will be researched and solutions provided.Should an item be a bug per the definition below, there will be no Support hours charged.  If the issue is a configuration or user issue, Support hours will be charged.               
    1. Definition of bug is:
      1. An action resulting in an error screen;
      2. A feature not working as it did previously; excluding features enhanced by a Release; and/or
      3. New features not working per Configuration Notes description.
  3. Tasks entered that end up being Customer’s network configuration and/or challenges, where Credible’s IT Infrastructure personnel get involved will count toward Support hours.
    1. If a Senior IT Infrastructure or Technology personnel needs to be involved beyond two (2) hours per month, their time will be charged at their rate of $250.00 per hour.
  4. Customer Service Support will support challenges with Advanced Search and Ad Hoc Reporting up to one (1) hour monthly.If more than an hour is required, the time spent on this task will be charged at the hourly Consulting Rate of $250.00.
  5. Credible Business Intelligence (BI) login and/or configuration challenges will be addressed via normal Customer Service Support hours.However, BI Reporting and/or Q&A will require a separate consulting contract.
  6. Customer Service Support will support Billing Code Matrix, Revenue Code Matrix, and Revenue to GL export up to one (1) hour monthly.If more than an hour is required, the time spent on this task will be charged at the hourly Consulting Rate of $250.00.  The initial hour will count against Customer’s monthly/quarterly support hours.
  7. Training request for new Customer employees or refresher training will be treated as a separate training order, and will be provided via the web at a discounted hourly cost or onsite at a daily rate.Training requests need to be scheduled with specific agenda items, estimate of staff to be trained, and estimated duration.
  8. Refresher training by a Customer Service Coordinator is counted against Customer’s monthly support hours.Training conducted by a Senior Customer Service Coordinator or Corporate Trainer will result in additional hours and fees.
  9. Training must be requested three (3) to four (4) weeks before desired training date.
  10. Customer activity resulting in Credible having to clear out or restore data will result in additional fees.
  11. Credible currently provides joint web-based trainings at no direct cost to Customer.Credible reserves the right to begin charging an hourly attendance fee. 

Business Services Agreement – Confidential & Proprietary
v20160727