DRCHAT –

LICENSE AGREEMENT FOR PROVIDER USERS

This DrChat License Agreement (“Agreement”) is entered into by and between DOCPACE, Inc., a Delaware corporation, (“DOCPACE”) and you, the user of DrChat (“User”). This Agreement becomes effective on the date User downloads DrChat from the Apple, Inc. App Store (“Apple Store”) or the Google Play Store (“Google Play”) and agrees to the terms provided below. User and DOCPACE may sometimes be referred to individually as a “Party” or together as “the Parties.” DrChat, is a HIPAA and HITECH-compliant communications platform that facilitates seamless, secure, and efficient conversations between doctors, their colleagues, and patients. User and DOCPACE are contracting to allow User to engage in electronic discussions with User’s patients who have downloaded and consented to communicate with User via DrChat (the “Services”), in accordance with the terms and conditions of this Agreement.

1. DEFINITIONS. When used in this Agreement, the following terms have the following meanings unless otherwise provided:

“Applicable Law” means any statute, law, ordinance, rule, regulation, by-law, order, consent, exemption, approval, or license of any Governmental Authority.

“Confidential Information” means any and all information, tangible and intangible, whether written or oral, disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) relating to the Disclosing Party’s business, including information (i) relating to the Disclosing Party’s technology, research, customers, strategies, algorithms, work plans, work flows, business operations, personnel, compensation, salary, benefits, equity, financial valuation, business plans, promotional and marketing activities, finances and other business affairs; (ii) belonging to third parties that the Disclosing Party is obligated to keep confidential; (iii) which is or should be reasonably understood to be confidential or proprietary to the Disclosing Party, including the source code of and other trade secrets relating to the Disclosing Party’s technology, goods, or services; or (iv) is otherwise designated as confidential by the Disclosing Party. Confidential Information does not include any information that the Receiving Party can demonstrate (A) was publicly available at the time of disclosure to the Receiving Party, (B) was published or otherwise became publicly available after disclosure to the Receiving Party, through no fault of its own, (C) was in the possession of the Receiving Party at the time of disclosure to the Receiving Party from a third party who had a lawful right to such information and disclosed such information to it without a breach of duty owed to the Disclosing Party, or (D) was independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party, as proven by dated written records. For the avoidance of doubt, the material terms and conditions of this Agreement and Feedback (as defined below) constitute Confidential Information.

“Effective Date” means the date this Agreement becomes legally enforceable between the Parties, which shall be the same date User signs this Agreement .

“Governmental Authority” means any federal, state, municipal, foreign or other government, governmental department, commission, board, bureau, agency or instrumentality, or any private or public court or tribunal.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time.

“HITECH” means the Health Information Technology for Economic and Clinical Health Act, as it may be amended from time to time.

“Intellectual Property” means (i) any and all intellectual property now or hereafter owned by DOCPACE, including DrChat, and any and all modifications, upgrades, enhancements, or amendments developed at any time; (ii) all technical information, technical data, inventions, products, designs, methods, know-how, processes, copyrights, patents, trade secrets, marks, trademarks, software, source code, modifications, and any and all updates and enhancements thereof; (iii) models, patterns, drawings, specifications, prototypes, discoveries, techniques, systems, works of authorship, ideas and concepts; and (iv) any related Intellectual Property Rights throughout the world (whether owned by DOCPACE or licensed to DOCPACE from a third party).

“Intellectual Property Rights” means: (i) any and all rights provided under  patent law,  copyright law (including registered and unregistered copyrights and unpublished works of authorship, and moral rights),  trademark law,  patent law, or any other statutory provision, regulation, or principle applicable to the protection of intangible information or rights, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (ii) any and all applications, registrations, licenses, sub-licenses, continuation, reissues, extensions, franchises, agreements or any other evidence of a right in any of the foregoing. 

“Protected Health Information” means an individual’s health, treatment, or payment for treatment information, and any information maintained in the same data set that could identify the individual, when the information is maintained or transmitted by an organization covered by HIPAA.

“Quote” means the price for Services contained within DOCPACE’s Quote for the provision of Services during the Subscription Term, subject to any terms and conditions stated therein.

“Subscription Term” means the period during which User is entitled to receive the Services specified in the Quote.

“Subscription Start Date” means the date the Subscription Term begins, which shall be mutually agreed upon by the Parties and included in the Quote.

“User Data” means any of User’s information, documents, or electronic files inputted, uploaded, submitted, or stored by User or its patients in DrChat.

2. RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be deemed or construed by the Parties or any third party as creating a relationship of principal and agent, partnership, or joint venture between the Parties. User expressly acknowledges and agrees that it is each patient’s own decision to download DrChat and consent to its use, and User shall not require any patient to download or otherwise use DrChat or condition any treatment on the use of DrChat.
3. LICENSE GRANT. Subject to User’s compliance with the terms of this Agreement, DOCPACE’s Terms of Use and Service (“Terms of Use”) and Privacy Policy, which are hereby incorporated into this Agreement by reference, DOCPACE grants User a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to download and use DrChat for the Services. If there is a conflict between this Agreement, the Terms of Use, and the Privacy Policy, this Agreement shall govern.
4. LICENSE FEE AND PAYMENT.

Fees. User shall pay DOCPACE the license fee agreed in an executed Quote or Invoice in U.S. Dollars ("Fees"). Fees are exclusive of taxes. Payment. User is responsible for providing DOCPACE with its billing information and payment method for payment of Fees (together, “Practice Account”). DOCPACE shall charge the applicable Fees to the Practice Account beginning on the Subscription Start Date and thereafter on a monthly basis or as otherwise provided in the Quote unless or until User provides written notice of termination in accordance with Section 11 below. Upon successful payment of Fees, DOCPACE shall send User a notice of receipt of payment to the email address associated with User’s Practice Account.

Late Payment. Any automatic charge that is declined or otherwise unsuccessful due to no fault of DOCPACE, without limiting its other rights and remedies, DOCPACE may: (i) charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or the highest rate permitted under Applicable Law; (ii) recover from User all reasonable costs incurred in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; or (iii) if such failure continues for thirty (30) days or more, suspend User’s access to any portion or all of DOCPACE Services provided under this Agreement until such amounts are paid in full.

Taxes. User is responsible for all sales, use, value added, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local Government Authority on any amounts payable by User arising out of or in connection with this Agreement.

5. USER RESPONSIBILITIES AND CERTIFICATIONS. User represents, warrants, and undertakes the following: (i) User is a licensed physician in the United States and a resident of one the fifty (50) states or District of Columbia. User possesses, and shall provide DOCPACE with valid confirmation of, current licensure and residency, including: (A) name, (B) mailing address, (C) email, (D) phone number(s), (E) NPI number, and (F) any other information DOCPACE deems reasonably necessary to provide. User certifies and authorizes DOCPACE to confirm that all information submitted by User is true, correct, authentic and current licensure and residency information of User; (ii) User is solely responsible for the accuracy of the information that User provides to DOCPACE including, but not limited to, User’s personal and professional credentials; (iii) User is solely responsible for ensuring that User’s login credentials (email and password) are kept confidential. DOCPACE will not be liable for any unauthorized use of User’s account or login credentials; (iv) User is solely responsible for any and all damages or losses that may be incurred or suffered by User as result of User’s own actions, inactions, negligence, fault, or misconduct, User’s failure to maintain the confidentiality of User’s login credentials, or the theft of User’s login credentials; (v) User must immediately notify DOCPACE in writing of any suspected or actual unauthorized use of User’s login credentials; (vi) User is solely responsible for managing Protected Health Information (“PHI”) and personal information in accordance with Applicable Law and User’s policies regarding the handling of PHI and personal information; (vii) User shall bear all responsibility for its handling or use of PHI and personal information of its patients, and for informing its patients of its policies and procedures concerning the handling or use of a patient’s PHI or Personal Information; (viii) User is solely responsible for confirming the identity and contact information of its patients who communicate with User through DrChat; (ix) User shall provide DOCPACE tablespace for athenahealth users; (x) User is solely responsible for providing DOCPACE with true, accurate, and correct information regarding User and its patients, and DOCPACE (A) shall be entitled to rely upon such information provided to it by User, (B) has no responsibility to check or verify information provided to it by User, and (C) disclaims all liability arising out of its use of inaccurate or incorrect information provided by User; and (xi) User shall also notify DOCPACE in writing of any changes in, revocation of, or restrictions imposed on User personnel access to DOCPACE Services, and DOCPACE disclaims all liability arising out of any disclosure of or access to patient information by such User personnel if User does not provide DOCPACE with written notice of any changes, revocations, or restrictions to personnel access.
6. FEEDBACK. In the event that User provides DOCPACE any suggestions, comments, feedback or ideas regarding the features or functionality of DrChat or for improving or otherwise modifying DrChat or related products or services (collectively, “Feedback”), User acknowledges and agrees that such Feedback  shall be the sole and exclusive property of DOCPACE, and User hereby irrevocably transfers and assigns to DOCPACE all right, title, and interest therein, including all Intellectual Property Rights in such Feedback. DOCEPACE shall have the unlimited right to utilize Feedback in any manner without notice, attribution, obligation, or compensation to User.
   
   
7. USE AND RESTRICTIONS.

Use. User shall comply with the terms of the DrChat End User License Agreement in its use of the Services, the terms of which are hereby incorporated into this Agreement. User shall only use DrChat for the purposes specifically authorized herein and in the End User License Agreement. 

Restrictions on Use. User is prohibited from posting, transmitting or submitting any unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law on or through DrChat. Any attempt to obtain unauthorized access or to exceed authorized access to DrChat is prohibited. Any or all communications sent through DrChat can and may be monitored, captured, recorded, and transmitted to the authorities as deemed necessary by DOCPACE in its sole discretion and without further notice. User shall not use DrChat to communicate with any patient as to any sensitive medical information about sexually transmitted disease(s), AIDS/HIV, mental health, developmental disability, or substance abuse. Except as expressly permitted herein, User shall not, and shall not permit any of its users or any third party to: (i) access and use DrChat in excess of use contemplated by this Agreement; (ii) allow access to DrChat to any third party, except to those certain patients who download and consent to communicate with User via DrChat, and otherwise as expressly permitted in advance in writing by DOCPACE; (iii) upload, download, recreate, display, perform, post, copy, reproduce, replicate, frame, mirror, disclose, publish, modify, create derivative works of, or translate DrChat or attempt to reverse assemble, reverse compile, reverse engineer, decompile, disassemble, or access the source code for DrChat or any part of DrChat, or authorize a third party to do any of the foregoing; (iv) modify, adapt, translate into other programming forms or languages or extend DrChat to operate in other environments or on other platforms; (v) use DrChat in the operation of a service bureau or on an application or software as a service provider basis to support anyone or otherwise provide services using DrChat or in any way that represents an entitlement to provide or use DrChat for the benefit of third parties who would otherwise have to purchase a license themselves; (vi) rent, lease, sublicense, sell, assign, market, transfer, distribute, resell or loan by any means DrChat, including without limitation granting sublicenses of or transferring (i.e., by rental or remote access) DrChat or the right to use same to benefit any third party; (vii) export or re-export, directly or indirectly, DrChat into any country prohibited by the applicable federal or state laws of the United States of America; (viii) design or create any software program or system or content, in whole or in part, with features or functions similar to the features or functions of DrChat or any part of DrChat through use, evaluation, or viewing of DrChat; (ix) use DrChat in violation of any Applicable Law, or authorize any third party to do so; or (x) remove from view any copyright legend, trademark or confidentiality notice appearing on DrChat or its output. User will reproduce all of DOCPACE’s copyright notices and any other proprietary rights notices on all outputs from DrChat that User makes hereunder.

8. DEVICES AND NETWORK CONNECTIVITY. User and User’s patients who download and consent to communicate through DrChat must have a compatible device and are solely responsible for selecting, obtaining, and maintaining any equipment, items, and ancillary services needed to access and use DrChat. Use of DrChat requires Internet or mobile data access, which may be subject to additional fees or charges. User and User’s patients are solely responsible for all fees and charges incurred when accessing DrChat. DOCPACE does not warrant nor is it responsible for device compatibility or network connectivity to DrChat.
   
   
9. USER’S OBLIGATION TO REPORT DEFECTS. User shall promptly report any perceived or actual defect or bugs to DOCPACE upon discovery and shall suspend its use of DrChat until such defect or bug has been resolved.
   
   
10. UPDATES; TECHNICAL SUPPORT.  DOCPACE may, in its sole discretion, provide updates, modifications or bug fixes to DrChat during the term of this Agreement and the terms and conditions of this Agreement shall apply to all updated versions of DrChat. Except during regularly scheduled downtime and maintenance, DOCPACE will provide at no additional charge, end user support via the DrChat support channel in the DOCPACE mobile application or via email. DOCPACE’s end user support hours are Mondays through Fridays from 6:30 a.m. to 6:30 p.m. CST (the “General Support Hours”), including federal public holidays and other holidays, unless otherwise notified by DOCPACE. DOCPACE shall respond to end user support requests (“Support Requests”) submitted during General Support Hours within one (1) hour of receipt of the Support Request; provided, however, responses to Support Requests made and/or received on a federal or public holiday or other holiday, or outside of the General Support Hours shall be within twenty-four (24) hours. All Support Requests must include a description of the technical issue User is experiencing and User acknowledges that DOCPACE’s response time may be delayed if User does not provide an adequate description of the technical issue. Support Requests made via email must be sent to help@docpace.com.  
11. TERM AND TERMINATION.

Term. The term of this Agreement shall remain in effect from the Effective Date until the end of the of the Subscription Term (the “Initial Subscription Term”), and shall renew automatically for additional consecutive terms equal to the same period of time as the Initial Subscription Term and in accordance with the terms and conditions contained in the Quote and this Agreement (the “Renewed Subscription Term,” and together with the Initial Subscription Term, the “Term”). 

Termination. This Agreement may be terminated: (i) by mutual agreement of the Parties on such terms as the Parties may agree; or (ii) by User or DOCPACE at any time, with or without cause, upon thirty (30) days’ prior written notice of the Party’s intent to terminate the Agreement.

Obligations Upon Expiration or Termination. User is responsible for maintaining its own copy of all User Data. User shall regularly backup or export all User Data on a regular basis during the Term. DOCPACE may delete all User Data that is not exported by User within five (5) days of expiration or termination of this Agreement, unless prohibited by Applicable Law or otherwise provided in a separate agreement between DOCPACE and User. DOCPACE shall be under no obligation to save, store, or make available to User any User Data or metrics displayed or made available through DrChat, except as otherwise required by Applicable Law.

Upon expiration or termination of this Agreement, User shall immediately (i) stop using DrChat; (ii) remove DrChat from User's network or possession, including as any files related to DrChat or its products of services and all copies thereof; and (iii) destroy all of DOCPACE’s Confidential Information in User’s possession and all copies thereof. User must certify to DOCPACE in writing that such removal and destruction is complete.

12. INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION.

Intellectual Property. User acknowledges that DOCPACE or DOCPACE’s licensors are the owners of all rights, title, interest in and to all DOCPACE Intellectual Property, including all Intellectual Property Rights in DrChat, in any form whatsoever, including:  (i) DrChat and any other products or services offered by DOCPACE at any time throughout the Term; (ii) any customizations, enhancements and/or new functionality to, or derivative works of, DrChat, including any proposed or actual additions or modifications thereto; (iii) the technology available as part of DrChat services; and (iv) all content, including text, software, music, sound, photographs, video, graphics, or other material contained in DrChat or DOCPACE’s products of services. User acknowledges that it does not have and does not claim any proprietary rights in any DOCPACE Intellectual Property and will be entitled only to the license rights specifically granted in this Agreement. 

Confidential Information. DOCPACE and User acknowledge that some information received by the Parties under this Agreement may include  Confidential Information. The Parties expressly agree that each will (i) maintain the Disclosing Party’s Confidential Information in strict confidence to the same extent and using the same means that the Receiving Party uses, or would reasonably be expected to use, to protect its own confidential information of a similar nature; (ii) not disclose any of the Disclosing Party’s Confidential Information to a third party (except as permitted under this Agreement) without the prior written consent of the Disclosing Party; (iii) use such Confidential Information solely for the purposes outlined in and permitted under this Agreement; (iv) take all reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information, and formulate and adopt appropriate safeguards in light of its own operating activities as is necessary to ensure protection of the Confidential Information; (v) only disclose Confidential Information to the Receiving Party’s  employees, contractors, or personnel who have a valid need to know such information for the Receiving Party’s evaluation, operation, or use of DOCPACE Services and who have first been informed of the confidential nature of the Confidential Information and the terms of this Agreement, and have executed a written agreement agreeing to be bound by the same or comparable confidentiality obligations (together, “Authorized Personnel”); (vi) not make copies or partial copies of the Confidential Information except as reasonably required to fulfill the Parties’ obligations under this Agreement; and (vii) notify the Disclosing Party immediately in writing if any loss or inability to account for Confidential Information, unauthorized disclosure of the Confidential Information, or breach of any terms of this Section 12 and take all reasonable means to mitigate any damages or losses that the Disclosing Party may incur as a result. 

Required Disclosures. If the Receiving Party is served with a court order or other order by a Governmental Authority compelling disclosure of Confidential Information, the Receiving Party will, to the extent permitted under Applicable Law, provide the Disclosing Party with immediate notice thereof to provide the Disclosing Party the reasonable opportunity to oppose disclosure or allow the Disclosing Party to seek a protective order or other appropriate remedy. If required to disclose Confidential Information under this Section 12, the Receiving Party shall disclose only the Confidential Information necessary and shall use its best efforts to obtain confidential treatment for any Confidential Information disclosed. 

Breach. The Parties acknowledge that any breach of this Section 12 or unauthorized disclosure or use of Confidential Information may cause the Disclosing Party great and irreparable harm for which damages may not be an adequate remedy. In the event of unauthorized disclosure or use of Confidential Information, the Parties shall, in addition to any other rights or remedies available in law or equity under this Agreement or otherwise, be entitled to seek injunctive relief.

Return of Information. Upon the expiration or earlier termination of this Agreement, or immediately upon any request of DOCPACE, User shall promptly, but not more than within twenty-four (24) hours of DOCPACE’S request, return or destroy all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession or control, and remove all digital representations thereof in any form from all electronic storage media in its possession or under its control, and must certify in writing to DOCPACE that User has fully complied with its obligations under this Section 12. Notwithstanding anything to the contrary in this Agreement, User will not be obligated to return or destroy any Confidential Information to the extent that the maintenance of such Confidential Information is required by law, regulation, rule, or internal compliance policy or procedure, including any requirement to retain email on an automated email archival system or relating to the safeguarding or backup storage of electronic data; provided that any Confidential Information so retained shall remain subject to the confidentiality obligations under this Agreement.

Survival. The Parties hereto covenant and agree that this Section 12 will survive the expiration, termination, or cancellation of this Agreement for a period of five (5) years, except for Confidential Information constituting a trade secret, will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.

13. USER AND PATIENT DATA.

Ownership; License Grant. User owns all right, title, and interest in the User Data, and DOCPACE shall not own any right, title, or interest therein, except as expressly provided in this Agreement. User hereby grants to DOCPACE, a non-exclusive, non-transferable, non-sublicensable, and irrevocable right and license to use, copy, transmit, modify, and display the User Data solely for purposes of providing DrChat to User (“User License”). Notwithstanding anything to the contrary, DOCPACE shall have the right collect and analyze data and other information relating to the provision, use, and performance of various aspects of DrChat and related systems and technologies (including, without limitation, information concerning User Data and data derived therefrom), and  DOCPACE will be free (during and after the Term of this Agreement) to (i) use such information and data to improve and enhance DrChat and for other development, diagnostic, and corrective purposes in connection with DrChat and other DOCPACE products, services, or offerings; and (ii) disclose such data in an aggregated or other de-identified form in connection with its business or as otherwise permitted in accordance with DOCPACE’s Privacy Policy. User owns or has the legal right and authority and will continue to own or maintain the legal right and authority to grant to DOCPACE during the term of this Agreement the User License described above, and the possession of User Data by DOCPACE will not violate any Applicable Law including, but not limited to, HIPAA. User agrees that no User Data will contain any computer code designed or intended to disrupt, disable, harm, or otherwise impede the operation of DrChat or any other computer system or of any associated software, firmware, hardware, or network (sometimes referred to as “viruses” or “malware”). 

Patient Data. User expressly represents and warrants that User will, at all times during the term of this Agreement and thereafter, comply with all Applicable Laws governing the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of PHI, and to use User’s best efforts to cause all persons or entities under User’s direction or control to comply with such laws. User is, at all times during the term of this Agreement and thereafter, solely responsible for obtaining and maintaining all patient consents other than the consent provided by DOCPACE via DrChat when User’s patient(s) download and consent to use DrChat, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the PHI transmitted, stored, or received in connection with DrChat. User expressly agrees that DOCPACE, DOCPACE’s licensors and licensees, and all other persons or entities involved in the operation of the materials and functionalities provided through DrChat have the right to monitor, retrieve, store, review and use PHI, if applicable, in connection with the operation or use such materials, and are acting on User’s behalf in transmitting PHI in accordance with the Business Associate Agreement (“BAA”) executed between the Parties in connection with this Agreement, a copy of which is attached hereto and hereby incorporated into this Agreement by reference. Except as otherwise provided under this Agreement or required by Applicable Law, the Parties hereby acknowledge and agree that User is solely responsible for ensuring compliance with all data privacy regulations relevant to information and data User uploads to DrChat, and User shall be bound to the indemnification provisions in this Agreement and as provided in the BAA. DOCPACE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR USER’S USE OR MISUSE OF PHI OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED WHILE USING DRCHAT. DOCPACE EXPRESSLY RESERVES THE RIGHT, BUT NOT THE OBLIGATION, TO AMEND OR DELETE ANY MATERIAL (ALONG WITH THE RIGHT TO REVOKE OR RESTRICT ACCESS TO DRCHAT) THAT IN DOCPACE’S SOLE DISCRETION VIOLATES THE TERMS OF THIS AGREEMENT.

14. WARRANTY DISCLAIMER. DOCPACE hereby represents and warrants that: (i) it has the requisite right and legal authority to grant the license and provide DrChat and the Confidential Information contemplated by this Agreement; (ii) will take reasonable precautions to safeguard User Data as further described in the DOCPACE Privacy Policy; and (iii) will perform its obligations under this Agreement in accordance with all Applicable Laws. BY PROVIDING DRCHAT TO USER, DOCPACE IS NOT OFFERING OR OTHERWISE PROVIDING ANY MEDICAL DIAGNOSIS OR TREATMENT. DOCPACE DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC DRUGS, TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, “OFF-LABEL” DRUG USES, PAYORS, OR OTHER INFORMATION THAT MAY BE MENTIONED IN DRCHAT. USER’S RELIANCE UPON DRCHAT AND THE INFORMATION OBTAINED OR USED BY USER THROUGH DRCHAT IS SOLELY AT USER’S OWN RISK.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DRCHAT, AND DOCPACE’S RELATED PRODUCTS AND SERIVCES, WHERE APPLICABLE, ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND AT THE RISK OF USER. NEITHER DOCPACE, NOR ANY OF ITS AFFILIATES, BUSINESS PARTNERS, CONTRACTORS, LICENSORS, CONTENT PROVIDERS (NOT INCLUDING LICENSEE), SERVICE PROVIDERS, SHAREHOLDERS, EMPLOYEES, PERSONNEL, OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES (COLLECTIVELY, “REPRESENTATIVES”) MAKES ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF DRCHAT OR ANY RELATED DOCPACE PRODUCTS OR SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DOCPACE AND ITS REPRESENTATIVES SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR IN EQUITY OR BY CUSTOM OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, COMPLIANCE WITH APPLICABLE LAW, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH DRCHAT, OR DOCPACE PRODUCTS OR SERVICES. 

DOCPACE MAY, IN ITS SOLE DISCRETION, AT ANY TIME, TERMINATE OR DISCONTINUE DRCHAT, DISCONTINUE USER’S PARTICIPATION, OR REMOVE USER’S FEEDBACK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUT SUBJECT TO THE REMAINING PROVISIONS OF THIS AGREEMENT, DOCPACE DOES NOT REPRESENT OR WARRANT THAT (i) DRCHAT OR DOCPACE PRODUCTS OR SERVICES WILL MEET USER’S OR ITS PATIENTS NEEDS OR REQUIREMENTS; (ii) THE OPERATION OF DRCHAT WILL BE UNINTERRUPTED, TIMELY, SECURE, CONTINUOUS, OR FREE OF DEFECTS, ERRORS OR INACCURACIES; (iii) THE FUNCTIONS CONTAINED IN DRCHAT WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY USER; (iv) DRCHAT IS SECURE OR INVULNERABLE TO CYBER ATTACKS; (v) DRCHAT OR USER DATA WILL BE SAFE FROM UNAUTHORIZED ACCESS, MANIPULATION, OR INTERFERENCE; OR (vi) DRCHAT WILL BE AVAILABLE OR ACCESSIBLE AT ANY GIVEN TIME.

15. MUTUAL INDEMNIFICATION. To the greatest extent permitted under Applicable Law, User agrees to, and will, indemnify, defend and hold harmless DOCPACE and its Representatives and each of their successors and permitted assigns against any and all losses, claims, allegations, suits, costs, expenses, fines, penalties, or other liability (including reasonable attorneys’ fees) related to or otherwise arising out of (i) User’s use of, or inability to use, DrChat and its related products or services, including any customizations, updates, corrections, or other modifications thereto; (ii) User’s breach or violation of any term of this Agreement; (iii) User’s gross negligence, willful misconduct, or violation of any law or regulation; or (iv) any claims or allegations brought against DOCPACE by User’s patients.

To the greatest extent permitted under Applicable Law, DOCPACE agrees to, and will indemnify, defend and hold harmless User and its affiliates, officers, employees, and directors against any and all losses, claims, allegations, suits, costs, expenses, fines, penalties, or other liability (including reasonable attorneys’ fees) related to or otherwise arising out of any claim that the Services infringe any third-party intellectual property right, provided that the relevant claim (i) does not arise from any modification to the Services made by User; (ii) does not arise from the combination of the Services with other products or technology not supplied by DOCPACE; and (iii) if the relevant claim is based upon Services obtained from a third party, only to the extent such third party has agreed to indemnify DOCPACE licensees.

16. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL DOCPACE OR ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, BUSINESS, REVENUE, DATA, OR DATA USE, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF DRCHAT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF DOCPACE TO USER OR TO ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF DRCHAT OR FOR ANY ERROR OR DEFECT IN DRCHAT, OR FOR THE PROVISION OF TECHNICAL SUPPORT, TRAINING, OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT. EXCEPT WITH RESPECT TO DAMAGES CASUED BY DOCPACE’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATIONS OF LAW, IN NO EVENT SHALL ITS LIABILITY EXCEED THE GREATER OF (I) TWELVE (12) MONTHS FEES PAID OR PAYABLE TO DOCPACE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (II) $25,000. 
17. AUDIT. DOCPACE may, at any time during the term of this Agreement, audit User’s use of DrChat including, upon reasonable written notice and during User’s normal business hours, at User’s premises as reasonably necessary to confirm that User is using DrChat in accordance with the terms and conditions of this Agreement (together, “Audit”). DOCPACE may use a third-party organization reasonably acceptable to User to assist DOCPACE in conducting the Audit. User will cooperate with DOCPACE in the Audit and will promptly make available to DOCPACE all information and materials reasonably required by DOCPACE to conduct the Audit.
18. PUBLICITY. DOCPACE is hereby  granted a non-exclusive, royalty-free license to use and display User’s name and/or logo on any of its marketing, advertising, and promotional materials or otherwise for any marketing, advertising, and promotional purposes, unless revoked by User upon thirty (30) days’ written notice to DOCPACE, and, upon User’s prior approval, which shall not be unreasonably withheld and deemed given if not denied within five (5) days of such request, DOCPACE shall have the continuous right during the Term of this Agreement and thereafter to (i) disclose to the public or any third party that User has used DrChat and to identify User as a reference, and (ii) issue any press release or other public statement regarding User’s testing and use of DrChat that contains content beyond that permitted by this Section 18.
19. DISPUTE RESOLUTION; BINDING ARBITRATION. The Parties agree to use good-faith efforts to amicably resolve any dispute arising out of or relating to this Agreement. Any controversy, claim, or dispute that cannot be resolved shall be settled by final binding arbitration before a single neutral arbitrator mutually agreed upon by the Parties in accordance with the rules of the American Arbitration Association. The Parties agree that all arbitration proceedings shall take place in the State of Louisiana, City of New Orleans, Orleans Parish, and governed under the laws of the State of Delaware, in accordance with Section 20 below. An arbitrator can award damages that do not conflict with this Agreement or the Terms of Use and Service. The arbitrator's decision shall be final, and judgment may be entered in any court of competent jurisdiction. The Parties agree that they are each waiving their rights to a jury trial in favor of having their disputes resolved by final and binding arbitration. This agreement to arbitrate shall survive termination of this Agreement. Notwithstanding anything to the contrary, DOCPACE may bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of its or its licensors' Intellectual Property Rights.
    
    
20. GENERAL PROVISIONS.

Governing Law; Venue. Subject to Section 19, the laws of the State of Delaware (without giving effect to its conflict of laws principles) shall govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement.

Authority to Bind. User represents and warrants that the execution, delivery, and performance of this Agreement and consummation of the transactions provided in this Agreement have been duly authorized by all necessary action required by the User’s medical practice or physicians’ group, and that User has the full capacity to bind the medical practice or physicians’ group to this Agreement. 

Entire Agreement. This Agreement and all other agreements incorporated herein constitute the final agreement between the Parties and supersedes all prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement, whether written or oral.

Assignment. User may not assign or otherwise transfer this Agreement, or assign, sublicense or otherwise transfer any of User’s rights under this Agreement without DOCPACE’s prior written consent. Any attempted assignment by User without DOCPACE’s consent shall be void.

Amendments. This Agreement cannot be amended without the mutual written consent of the Parties.

Survival of Certain Provisions. Each Party hereto covenants and agrees that the provisions that, by their terms, are intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.

Severability; Waiver. If any provision of this Agreement is held invalid, unenforceable, or illegal by a court of competent jurisdiction, the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of this Agreement containing any provision held to be invalid, void, or otherwise unenforceable, that is not itself invalid, void, or unenforceable) shall be construed to give effect to the intent manifested by the provision held invalid, void, or unenforceable. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.

Attorneys’ Fees. In the event of any action or proceeding to enforce the rights under this Agreement, the non-prevailing party, in a final, non-appealable order or decision, shall reimburse the other party for its reasonable, duly-documented, out-of-pocket legal fees and expenses, and expert fees incurred in connection with all such litigation or arbitration, as applicable.

Notice and Notification. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed email transmission, or by overnight delivery service and in each instance will be deemed given upon receipt. All communications to User will be sent to the addresses provided under Section 5 or to such other address as may be specified by User in accordance with this Section 20. All communications to DOCPACE shall be sent to the following:

DOCPACE, Inc.

Attn: Shelby Dabelich

111 Veterans Memorial Blvd

Suite 250

Metairie, Louisiana 70005, US

info@docpace.com