Terms and Conditions Agreement

This Terms and Conditions Agreement ("Agreement") sets forth the terms under which Asparia, Inc. will provide Customer with access to and use of certain software and service offering(s) ("Solution") identified in the applicable Order Form. By executing an Order Form or installing, accessing or otherwise using the Solution, Customer will be bound by this Agreement. The Order Form will be: (a) used by Customer to order such Solution; (b) executed by the Customer and Asparia; and (c) subject to this Agreement. The Order Form together with this Agreement and the Business Associate Agreement form a binding contract between Customer and Asparia. In addition, Customer agrees that any updates or enhancements to the Solution that are made available to Customer, and/or any new Solution(s) subsequently purchased by Customer under an Order Form will be subject to this Agreement.

1. Definitions
   1.1 "Solution" means the Asparia proprietary technology for the exchange of messages and information between Customers and their patients.
   1.2 "Agreement" means these terms and conditions, together with any and all Order Forms referencing these terms and conditions, the Schedules attached hereto and any other statements of work or exhibits.
   1.4 "Customer" means the health care provider or clinic that has executed an Order Form with Asparia.
   1.5 "Customer Data" means all electronic data or information transmitted by Customer or its Users using the Solution.
   1.8 "Initial Term" means the initial subscription term specified in the applicable Order Form, excluding any renewals terms.
   1.9 "Order Form" means a Asparia order form for initial acquisition, purchase, add-on purchase or renewal in the name of and executed by Customer and accepted by Asparia which specifies the Solution and professional services to be provided by Asparia subject to the terms of this Agreement.
   1.10 "Asparia" means Asparia, Inc., a Delaware Corporation.
   1.11 "Term" means the Initial Term specified in the applicable Order Form and any renewal terms.
   1.12 "Administrator(s)" means the User(s) designated by Customer who are responsible for administering the Solution on behalf of Customer.
   1.13 "Users" means Customer's Administrators and patients who transmit information using the Solution.
2. General Terms of Access to the Solution
   The Order Form shall identify the type of license agreed to by Asparia and Customer as well as the relevant costs and fees associated with the implementation and use of the Solution by Customer.
   
   2.1 License. Subject to the terms of this Agreement and payment of the applicable fees, Asparia grants to Customer during the Term a limited, non-transferable, revocable, and non-exclusive license to permit Users to use the Solution in accordance with the use parameters, pricing, and payment terms described in this Agreement and the applicable Order Form solely for Customer's own internal business purposes, and in accordance with the terms and conditions of this Agreement.
   
   2.2 Customer Internet Access.   High speed Internet connection is required for proper transmission of the Solution. Customer is responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect the Customer network to the Solution. Asparia assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by Asparia.
   
   2.3 Asparia's Customer Support.  As part of the Solution, Asparia will provide Customer with online resources to assist Customer in its use of the Solution.
   
   2.4 Security. Asparia shall maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data in compliance with such standards as are required by the United States National Institute of Standards and Technology for individually identifiable health and financial information.
3. Confidentiality
   For purposes of this Agreement, "Confidential Information" shall include the terms of this Agreement, Customer Data, Asparia's proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Solution and any information that is exchanged between the parties is presumed to be confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is data aggregated regarding use of Asparia's services that does not include any Customer Data in identifiable or de-identified form or contain any personally identifiable or Customer-specific information.
   
   3.1 Protected Health Information; Privacy and Security.  Each Party shall be responsible for complying as applicable with the federal and state laws governing protected health information, including but not limited to the applicable provisions of the Health insurance Portability and Accountability Act of 1996 (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH), and the implementing regulations thereto. The Parties hereby incorporate the Business Associate Agreement into this Agreement and agree that it governs Asparia's access to Protected Health Information (as defined in the Business Associate Agreement) and the services Asparia provides to Customer with respect to such Protected Health Information.
4. Intellectual Property
   4.1 Ownership of Customer Data.  As between Asparia and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer.
   
   4.2 Asparia Intellectual Property Rights. All rights, title and interest in and to all intellectual property rights in the Solution are owned exclusively by Asparia or its licensors. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to Customer does not convey any rights in the Solution, express or implied, or ownership in the Solution or any intellectual property rights thereto. In addition, Asparia shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Solution any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Solution. Any rights not expressly granted herein are reserved by Asparia. Asparia service marks and trademarks, logos and product and service names are marks of Asparia (the "Asparia Marks"). Customer shall not display or use the Asparia Marks in any manner without Asparia's express prior written permission.
5. Payment Terms
   5.0 Invoicing and Payment. Asparia will invoice Customer for all amounts payable to Asparia, based in accordance with the applicable Order Form, which Customer will pay in full within thirty (30) days of the date of such invoice. All amounts invoiced are due and payable in full within thirty (30) days of the date of invoice. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
   
   5.1 Taxes. All Fees payable under the applicable Order Form are net amounts and payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer's receipt or use of the Solution. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide Asparia with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
   
   5.2 Changes.  Asparia may change any rates, fees, expenses, or charges regarding Customer's Solution at any time. Asparia will provide Customer with notice of material changes either in Customer's invoice or separately.
   
   IF ASPARIA INCREASES THE FEES AND CHARGES APPLICABLE TO CUSTOMER'S SUBSCRIPTION, BEYOND THE LIMITS SET FORTH ON CUSTOMER'S ORDER FORM, ASPARIA WILL DISCLOSE THE CHANGES AT LEAST 45 DAYS IN ADVANCE OF END OF SUBSCRIPTION TERM (EITHER THROUGH A NOTICE WITH CUSTOMER'S BILL, EMAIL OR OTHERWISE), AND CUSTOMER MAY TERMINATE THIS AGREEMENT WITHOUT PAYING AN EARLY TERMINATION FEE PROVIDED CUSTOMER'S NOTICE OF TERMINATION IS DELIVERED TO ASPARIA WITHIN THIRTY (30) DAYS AFTER THE FIRST NOTIFICATION REFLECTING THE CHANGE.
6. Disclaimer.
   ASPARIA DOES NOT REPRESENT THAT CUSTOMER'S USE OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOLUTION WILL MEET ALL OF CUSTOMER'S REQUIREMENTS OR THAT THE OVERALL SYSTEM OUTSIDE OF ASPARIA'S OWNERSHIP AND/OR CONTROL THAT MAKES THE SOLUTION AVAILABLE (THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER'S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION 6 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY ASPARIA. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitations of Liability. 
   
   7.1 CUSTOMER AGREES THAT THE CONSIDERATION WHICH ASPARIA IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY ASPARIA OF THE RISK OF CUSTOMER'S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COST OF COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW).
   
   7.2 EXCEPT WITH REGARD TO AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OR OTHER DEPLOYMENT OF THE SOLUTION, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF 12 MONTHS IN SUBSCRIPTION FEES FOR THE SOLUTION THAT IS THE SUBJECT OF THE CLAIM.
   
   7.3 THE PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF THE CUSTOMER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED FOR THE SOLUTION TO CUSTOMER.
8. Term and Termination
   8.1 Term. The Term of this Agreement shall commence on the date provided in the Order Form ("Subscription Start Date") and shall remain in effect for period specified in the Order Form ("Initial Term").
   
   8.2 Termination for Cause, Expiration.  Either party may immediately terminate this Agreement and any applicable Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement that is not cured within thirty (30) days of written notice from the non-breaching party. Either party may terminate this Agreement upon notice to the other party in the event of the Bankruptcy, Insolvency or Assignment for the Benefit of Creditors:  In the event either party files for bankruptcy, is declared insolvent or makes an assignment for the benefit of creditors, the other may terminate this Agreement upon sixty (60) days prior written notice. Upon termination or expiration of this Agreement for any reason, Customer shall have no rights to continue use of the Solution. If this Agreement is terminated as a result of Customer's material breach of the Agreement, then Asparia shall be entitled to all of the Fees due under this Agreement for the entire Term.
9. General Provisions.
   9.1 Notices. Notices between the parties will be by personal delivery, overnight delivery, or certified or registered mail, return receipt requested, and will be deemed given upon receipt at the address of the recipient party or ten (10) days after deposit in the mail, or via email with confirmation of receipt. Addresses used will be the ones set forth on the Order Form or such other address as a party hereto will notify the other in writing.

   9.2 Severability. In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually agreeable valid provision that most closely approximates the intent of the invalid provision.
   
   9.3 Assignment. Either party may assign or transfer all or any portion of its rights or responsibilities under this Agreement by operation of law or otherwise to any other party in connection with a merger, acquisition, reorganization, or a sale of substantially all of its assets without prior notice to the other party.
   
   9.4 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other
   
   9.5 Force Majeure.  Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party's reasonable control.
   
   9.6 Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof, all of which are merged herein.
   
   9.7 Governing Law. This Agreement will be governed by the laws of the State of California, excluding its rules regarding conflicts of law. Venue for any dispute hereunder will be a state or federal court of competent jurisdiction located in Santa Clara County, California.
   
   Updated February 15, 2021