CHARGEGRABBER APPLICATION SERVICE PROVIDER AGREEMENT

WHEREAS, Provider is a provider of services that permits users to use and access a Web-based software application known as “ChargeGrabber” (the “Product”); and

WHEREAS, Customer desires to engage Provider to perform certain services, and to provide Customer with direct access to the Product through Provider’s Web site (the “Product Site”); and

WHEREAS, Provider desires to provide certain services to Customer and to host the Product Site, subject to the terms, conditions and restrictions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:

Access. Subject to the terms of this Agreement, upon the execution of this Agreement and a mutually acceptable Business Associate Agreement (the “Business Associate Agreement”) by both parties, Provider will provide Customer with a non-transferable, non-exclusive right to use and access the Product Site for its own internal use for the Term of this Agreement.
Term. This Agreement will commence upon the Effective Date and, unless terminated earlier as provided herein, will continue for a period of one (1) year (the “Initial Term”). Upon expiration of the Initial Term or any Renewal Term, this Agreement will automatically renew for an additional one (1) year renewal term (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party gives the other party written notice of termination at least thirty (30) days prior to the last day of the then current Term.
Support and Maintenance.

Standard Support and Maintenance. During the Term of this Agreement, provided that Customer is current in its payment of fees under this Agreement, Provider will provide Customer with its standard technical support and maintenance, at no additional charge. Standard technical support and maintenance will include the following:

Provider support personnel will be available to provide support and assistance to Customer via telephone and e‑mail during Provider’s normal business hours (8:00 a.m. to 5:00 p.m. Eastern Time, Monday - Friday, national holidays excepted);
Provider will implement all enhancements, updates and upgrades to the Product and the Product Site that Provider makes generally and commercially available to other customers without charging Customer any additional fee; and
Provider will implement standard error correction and maintenance modifications to the Product and the Product Site.

Out-of-Scope Services. Notwithstanding the foregoing, if Provider makes a reasonable business determination that the technical support requested by Customer pursuant to this Section are outside the scope of the support and maintenance services provided hereunder and/or would entail detailed, specialized maintenance and/or support services different in kind or amount from those provided to other similar customers of the Product (including without limitation assistance to enable the interfacing or operation with a non-supported, unusual or proprietary system), then Provider will notify Customer that the requested support is considered an additional service which will be subject to additional fees, to be negotiated.
Other Services. Provider will also: (i) be responsible for using commercially reasonable efforts to monitor and maintain the host servers and to provide substantially continuous connectivity, availability and operation of the Product Site; and (ii) provide training, for the fees set forth in Exhibit A hereto, to designated staff of Customer to enable Customer to use the Product and the Product Site.
Security. Provider, or its hosting partner, will offer access to the Product Site using the Internet, by hosting its application. Provider, or its hosting partner, will operate and maintain the Product server (the “Server”) in good working order, with access restricted to qualified employees or contractors of Provider. Provider, or its hosting partner, will employ commercially reasonable efforts to ensure the security, confidentiality and integrity of all Customer Data (as hereinafter defined) and other proprietary information transmitted through or stored on the Server, including without limitation: (i) maintenance of independent archival and backup copies of the Product Site and all Customer Data; and (ii) protection from any network attack and other malicious, harmful or disabling data, work, code or program. Notwithstanding the foregoing, Customer acknowledges and agrees that Customer will be fully responsible: (A) for the patient data that is entered into and displayed through the Product; and (B) for restricting access to the Product and the confidential patient data stored therein to only Customer’s authorized personnel.
Assistance From Customer. Customer agrees to make available appropriate personnel to advise Provider in the performance of its obligations under this Agreement and to provide Provider with any Customer Data required for the successful operation and/or functioning of the Product and/or the Product Site.
Downtime. Customer and Provider acknowledge and agree that the ability to provide trouble-free operation of the Product Site is dependent on a combination of factors, including without limitation, reliability, proper hardware configuration, including backup hardware configurations, backup power sources and backup communication facilities, a virus-free environment, appropriate system backup procedures, and Customer’s adherence to Provider’s recommended practices and procedures. Notwithstanding the foregoing, Customer understands and acknowledges that, from time to time, the Product and the Product Site may be inaccessible or inoperable for various reasons, including without limitation equipment malfunctions, upgrades or modifications, or causes beyond the control of Provider which are not reasonably foreseeable by Provider, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively, “Downtime”). Provider will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product Site and, in the case of any scheduled Downtime, if reasonably practicable, Provider will provide Customer with at least twenty-four (24) hour advance notice, unless a shorter period of time is necessary or appropriate under the circumstances, as reasonably determined by Provider, in its discretion.
Internet Software. Customer shall be solely responsible for obtaining, installing and maintaining such software as may be necessary to enable Customer to access the Internet and for obtaining its own Internet connection.

Acceptance of Product Site. Customer will have two (2) business days from the date of activation to formally accept the Product and the terms of this Agreement. Customer’s failure to notify Provider that it does not accept the Product within such period will automatically constitute acceptance.
Payment Terms.

Fees. In consideration of the grant of rights set forth in this Agreement, Customer agrees to pay to Provider the fees set forth on Exhibit A hereto.
Late Payments. Any sum not paid when due shall bear interest at the rate of one and one-half percent (1½%) per month or the highest rate permitted by applicable law, if less. If Customer should fail to pay any sum owed hereunder by the due date, Provider has the right to suspend Customer’s ability to access the Product until such time as Customer has paid in full the balance due. If Customer should fail to pay any sum required to be paid under this Agreement within thirty (30) days after its due date, then Provider may, upon written notice to Customer, terminate this Agreement pursuant to Section 11.
Rate Increases. Provider may increase any of the fees set forth on Exhibit A hereto by giving at least thirty (30) days’ prior written notice thereof to Customer; provided, however, that no such fee increase will be effective for at least one (1) year from the Effective Date.
Taxes. The fees to be paid under this Agreement do not include any federal, state or local sales, use or other taxes arising from or relating to this Agreement, or any other taxes or duties whether presently in force or imposed in the future, all of which taxes and/or duties shall be assumed and paid by Customer (other than income or franchise taxes imposed on Provider). The amount of any such taxes may be included in invoices issued by Provider. If further taxes are determined to be payable, Customer shall promptly pay them upon demand by Provider. If Customer is exempt from the payment of any such taxes, Customer shall provide Provider with a valid tax exemption certificate.

Proprietary Rights.

Ownership. Customer acknowledges and agrees that neither this Agreement nor Customer’s use of the Product or the Product Site conveys or will convey any title or ownership in or to the Product or the Product Site and is not a sale of any rights in either the Product or the Product Site. The Product and the Product Site are owned by Provider and are protected by copyright law and international copyright treaty. Customer will not, at any time, take or cause any action to be taken which would be inconsistent with or tend to impair the rights of Provider or its hosting partner in the Product or the Product Site, or any aspect thereof.
Copyrights and Trademarks. Provider will have and retain sole ownership of any and all Provider copyrights and trademarks, including without limitation any goodwill relating thereto. Customer will not remove or alter any of Provider’s proprietary or copyright notices, trademarks or logos.

Privacy.

Ownership of Data. All rights in any data input into the Product Site by or on behalf of Customer will belong to and remain with Customer. Such data will include without limitation Customer’s corporate data, including without limitation registration data, that is supplied and input by or on behalf of Customer (“Customer Data”). Provider agrees not to use any Customer Data for any purpose other than to perform its obligations under this Agreement. Provider further agrees not to make Customer Data available to any third party without Customer’s prior written consent.
Analysis. Provider reserves the right to perform statistical analyses of the Product Site and/or Customer’s use of the Product. Provider does this to measure the effectiveness of the Product and the Product Site, to optimize the performance of the Product and the Product Site, and to ensure compliance with the terms of this Agreement. Customer shall not have any right or ability to obtain or learn the results of any such analysis.
HIPAA. Each party agrees to comply with the terms of the Business Associate Agreement, as well as the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health (“HITECH”) Act (collectively, the “HIPAA Statute”) and its related “Privacy Rule” (45 CFR Parts 160 and 164, Subparts A and E) and “Security Rule” (45 CFR Part 160 and 164, Subparts A and C), as amended or implemented by the “Omnibus Rule” (45 CFR Part 160, Subparts A, B, C and D and Part 164, Subparts A and C), promulgated by the Secretary of the Department of Health and Human Services (collectively, the “HIPAA Rules”) (the HIPAA Rules and the HIPAA Statute being herein collectively referred to as “HIPAA”), as well as any other applicable laws concerning the privacy and security of health information.

Confidentiality.

Customer acknowledges that the Product and Product Site are unique and valuable and have been developed or otherwise acquired by Provider at great expense, and that any unauthorized disclosure or use of the Product and/or the Product Site or any component thereof would cause Provider irreparable injury and loss, for which damages would be an inadequate remedy.
Provider and Customer each acknowledge that all information and materials relating to the business and operations of the other which it learns or acquires or has learned or acquired during or prior to the term of this Agreement are valuable properties of the party providing or disclosing the same. Provider and Customer each acknowledge the need to preserve the confidentiality and secrecy of such information and materials, and agree that, both during the term of this Agreement and at all times after any expiration or termination hereof, it shall not use or disclose any such information or materials, except to perform its obligations under this Agreement and as provided herein, and it shall take all steps necessary to ensure that any use of any such information or materials by it or by its employees or agents (which use shall be solely as necessary for, and in connection with, the performance of such party’s obligations under this Agreement) shall preserve in all respects such confidentiality and secrecy.
The provisions of this Section shall not apply with respect to any information or materials which have entered or subsequently enter the public domain through no fault of the receiving party. Each party hereby indemnifies the other against any damage of any kind which may be suffered by such party as a result of any willful breach by it of the provisions of this Section.
Customer will not modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Product and/or the Product Site, or any aspect thereof.

Limited Warranties.

Each party represents and warrants that it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder.
Provider gives the following LIMITED WARRANTIES to Customer: (i) that Provider is the owner of the Product and the Product Site or otherwise has the right to grant to Customer the rights set forth in this Agreement; (ii) that the Product and the Product Site will perform substantially in accordance with their accompanying electronic product documentation for a period of ninety (90) days from and after the Effective Date; and (iii) that the services to be performed under this Agreement will be performed using generally accepted industry standards.
As Customer’s SOLE REMEDY in the event any breach or threatened breach of the foregoing LIMITED WARRANTIES, Provider shall, at its sole option, either: (i) procure, at Provider’s expense, the right for Customer to use the Product and the Product Site; (ii) replace the Product and the Product Site (or any part thereof that is in breach hereof) with a product and/or Web site, as the case may be, of comparable functionality that does not cause any such breach; or (iii) refund to Customer the amount of any fees paid by Customer to Provider during the twelve (12) prior months under this Agreement, even if Provider has been advised of the claim or potential claim.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT, THE PRODUCT SITE, ANY DOCUMENTATION PROVIDED OR MADE AVAILABLE TO CUSTOMER, AND ANY OTHER PRODUCTS AND RELATED MATERIALS AND/OR SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER, ITS EMPLOYEES OR AGENTS, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTIES SET FORTH ABOVE AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING LIMITED WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY BY STATE/JURISDICTION.
Provider will not be responsible for any delay in the delivery of any services provided under this Agreement, including without limitation any support or maintenance services, which is due to Customer’s failure to provide assistance as provided under this Agreement.

LIMITATION OF LIABILITY. IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, LOST BUSINESS, LOST INFORMATION OR OTHER PECUNIARY LOSS, SUFFERED OR INCURRED BY CUSTOMER AS A CONSEQUENCE OF THE USE OR PERFORMANCE OF THE PRODUCT OR THE PRODUCT SITE OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, UNDER NO CIRCUMSTANCES WILL PROVIDER BE LIABLE FOR ANY LOSS, COST, EXPENSE OR DAMAGE TO CUSTOMER IN AN AMOUNT EXCEEDING THE SUM OF THE FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER DURING THE TWELVE (12) PRIOR MONTHS UNDER THIS AGREEMENT, EVEN IF PROVIDER HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM.
Termination; Suspension.

In addition to such other rights and remedies as may be available in law or in equity, either party (the “Terminating Party”) may suspend its performance under this Agreement or terminate this Agreement in its entirely if the other party (the “Breaching Party”) should breach any of its obligations under this Agreement in any material respect, or if any of the representations or warranties made in this Agreement by the Breaching Party should prove to be untrue in any material respect, and the Breaching Party fails to remedy such breach within thirty (30) days after the Breaching Party receives written notification of such breach, specifying the nature of the breach in reasonable detail.
Customer acknowledges that, if it fails to pay any sum owed hereunder by the due date, Provider has the right to suspend Customer’s ability to access the Product until such time as Customer has paid in full the balance due.
No expiration or termination of this Agreement will affect any accrued rights or liabilities of either party hereunder, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after such expiration or termination.
Sections 6, 7, 8, 9, 10, 12 and 13 of this Agreement shall survive any expiration or termination of this Agreement and shall remain binding on the parties.
Upon any expiration or termination of this Agreement, Customer will immediately cease all use of the Product and the Product Site and return or destroy any and all components thereof, including without limitation by returning or destroying or causing to be destroyed any and all copies of any documentation, notes and other materials comprising or regarding the Product and/or the Product Site.

Force Majeure. Each party shall be excused from the performance of any of its obligations under this Agreement for any period and to the extent that it is prevented from performing such obligations, in whole or in part, as a result of delays caused by the other party or by an act of God, war, civil disturbance, terrorism, court order, fire, explosion, strike, freight embargo, labor dispute, act of any government, de jure or de facto, or any agency or official thereof, third-party nonperformance, default of manufacturer or supplier as a subcontractor, extended unavailability of public utility service, unavailability or delay in telecommunications, third party Internet Service Providers or non-Provider servers, or other cause beyond its reasonable control, and such nonperformance shall not be a breach hereunder or a ground of termination hereof. Notwithstanding the foregoing, however, any such event of force majeure shall not act so as to extend the term of this Agreement.
Miscellaneous.

Relationship of the Parties. Nothing contained in this Agreement will be construed to constitute the parties hereto as partners or as joint venturers, or either as the agent of the other, and Customer will have no power to obligate or bind Provider in any manner whatsoever.
Notices. All notices, requests, demands and other communications required or permitted to be made under this Agreement shall be in writing and shall be deemed duly given if hand delivered against a signed receipt therefor, sent by registered or certified mail, return receipt requested, first class postage prepaid, or sent by nationally recognized overnight delivery service, in each case addressed to the party entitled to receive the same at the address set forth on the first page of this Agreement. Either party may alter the address to which communications are to be sent by giving notice of such change of address in conformity with the provisions of this Section providing for the giving of notice. Notice shall be deemed to be effective, if personally delivered, when delivered; if mailed, at midnight on the third business day after being sent by registered or certified mail; and if sent by nationally recognized overnight delivery service, on the next business day following delivery to such delivery service.
Amendment and Modification. This Agreement may not be changed, amended or modified in any way except by a writing signed by both of the parties hereto.
Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument.
Entire Agreement. This Agreement, together with the Business Associate Agreement, sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and thereof, and supersedes all prior agreements, understandings, inducements and conditions, whether express or implied, oral or written, except as herein contained. The express terms hereof will control and supersede any course of performance and/or usage of trade inconsistent with any of the terms hereof.
Successors and Assigns. Customer may not assign or transfer any of its rights or delegate any of its duties under this Agreement without the prior written consent of Provider. Subject to the foregoing restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Governing Law. This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, regardless of the laws that might otherwise govern under applicable principles of the conflicts of law thereof.
Waiver. No term or provision of this Agreement will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party that has given such waiver or excused such breach.
Venue. BOTH PARTIES AGREE TO SUBMIT TO JURISDICTION IN THE COMMONWEALTH OF PENNSYLVANIA AND AGREE THAT ANY CAUSE OF ACTION ARISING UNDER THIS AGREEMENT WILL BE BROUGHT IN THE STATE COURTS SITTING IN BUCKS COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA OR IN THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Exhibits and Schedules. All exhibits and schedules to this Agreement (if any) are hereby incorporated herein by reference.

Other Terms. This Agreement shall be subject to such additional terms as may be set forth in Exhibit B hereto, if any.

If Customer has any questions concerning this Agreement, or if Customer desires to contact Provider for any reason, please contact in writing:

Abacus Medical Designs, LLC
2387 Lower State Road
Doylestown, PA 18901
Attn: Customer Service

EXHIBIT A

A. Fees:

Service Base Price
1. Setup Fee (One Time) $250.00
2. Concurrent User Yearly License Fee
(Base System) $425.00 per User, per Year
3. Support, Maintenance and Upgrades Included
4. Nightly System Backup Included

B. Personalized training is available, if requested by Customer, for an additional fee, to be negotiated.

EXHIBIT B

Other Terms

None.