MASTER SOFTWARE AS A SERVICE AGREEMENT

        Master Software AS A Service Agreement (“Agreement”) made as of the…(See Client Contract)…, by and between Kare Intellex, Inc., an Ohio corporation  (“KARE INTELLEX”), and …………………….. (“CUSTOMER”).

        WHEREAS, KARE INTELLEX has developed certain software known as KARE INTELLEX SOFTWARE and CUSTOMER wishes to license such software from KARE INTELLEX.

        NOW, THEREFORE, in consideration of the foregoing premises and the terms and conditions set forth below, and for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1.        License Grant.  Subject to the terms and conditions of this Agreement, KARE INTELLEX grants to CUSTOMER (and its affiliated entities) a non-exclusive and non-transferable license to access and use the KARE INTELLEX Software (together with any modifications or enhancements thereto that KARE INTELLEX makes generally available from time to time (the “Software”)) and the on-line help information for the Software that KARE INTELLEX provides CUSTOMER from time to time (collectively, the “Documentation”) for its own internal billing purposes.

2.        Term.  The term of this Agreement will commence and end on the dates listed above, unless earlier terminated as provided herein.

3.        Fees.        In consideration of KARE INTELLEX’s obligations hereunder, CUSTOMER will pay KARE INTELLEX the fees (the “Fees”) for per claim submitted on KARE INTELLEX’s software. The Fees shall correspond to set percentage (see Client Contract) of total dollar value of each claim submitted on KARE INTELLEX’s software platform.  All Fees are exclusive of sales and other applicable taxes, all of which CUSTOMER will be responsible for paying (except KARE INTELLEX will pay its own income taxes).

4.        Subscription.

        (a)        Subject to the terms and conditions of this Agreement, KARE INTELLEX will make the Software and the Documentation available via the Internet.  CUSTOMER will permit only its employees to access the Software and the Documentation.

        (b)        The Software will be 99% available except for regularly scheduled maintenance (the time periods for which will be communicated to CUSTOMER).  KARE INTELLEX will provide CUSTOMER with no less than 10 days prior notice of any change to such maintenance times.  

5.         License Exclusions.  Except as expressly authorized by this Agreement, CUSTOMER will not, directly or indirectly, do any of following:

        (a)        Copy, modify or create derivative works based upon the Software or the Documentation;

        (b)         Defeat, disable or circumvent any protection mechanism related to the Software or the Documentation;

        (c)         Sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party any portion of the Software or the Documentation;

        (d)        Publish or otherwise communicate any information regarding the terms of this Agreement to any third party without the prior written consent of KARE INTELLEX; or

        (e)        Export, access or use the Software in violation of any U.S. Department of Commerce export administration regulations or other applicable laws or regulations.

6.        Ownership.  Except for the rights expressly granted in this Agreement, CUSTOMER acknowledges that KARE INTELLEX retains sole and exclusive right, title and interest in and to the Software, the Documentation and any copies thereof.  

7.        Payer Access

        (a)        CUSTOMER acknowledges that its ability to utilize the Software is dependent on third party information suppliers.  Notwithstanding anything contained herein to the contrary, KARE INTELLEX is not responsible for EDI service interruptions, cancellations attributed to non-cooperation and/or non-participation of third party information suppliers, or third party changes to data content or format that might interrupt or alter the Software’s representation of payer data to CUSTOMER.  

        (b)        CUSTOMER may utilize the Software for all payers listed under KARE INTELLEX’s current list of KARE INTELLEX network payers (“Current Payers”).  KARE INTELLEX may add or delete Current Payers in its sole discretion by giving CUSTOMER written notice to such effect. CUSTOMER will pay any fees KARE INTELLEX incurs to provide CUSTOMER with access to a payer that is a Current Payer (e.g., one-time payer set-up fees or payer per transaction fees).  CUSTOMER may elect not to send transactions to any payer that has such an access fee.

        (c)        Current Payers, fiscal intermediaries, government entities, and other third party information suppliers may require that CUSTOMER agree to comply with certain obligations (e.g., confidentiality, liability and scope of use) as a condition of accessing their information.  KARE INTELLEX will deliver to CUSTOMER such written obligations.  CUSTOMER agrees to comply with such obligations as a condition of utilizing the Software to access payers with such obligations.

8.        Termination.

        (a)        Either party may terminate this Agreement at any time by giving the other party written notice to such effect, if the other party commits a “Default”.  A “Default” means (i) a party materially breaches any material obligation hereunder, and fails within 30 days of receiving written notice thereof, to cure such breach; (ii) a party becomes insolvent, is liquidated or dissolved, stops doing business, or assigns its rights or property for the benefit of creditors; or (iii) a petition is filed by or against a party under Title 11 of the United States Code or any successor or similar law.

        (b)        Within 15 days of the termination of this Agreement for any reason, an officer of CUSTOMER will certify to KARE INTELLEX that all copies of the Documentation have been either returned to KARE INTELLEX or destroyed.  

        (c)        If CUSTOMER terminates this Agreement under this Section 8, KARE INTELLEX’s entire liability and CUSTOMER’s exclusive remedy will be as follows: (i) in all situations involving performance or nonperformance of the Software, CUSTOMER’s remedy is set forth in Section 9 and (ii) except for KARE INTELLEX’s obligations under Section 10, KARE INTELLEX’s liability to CUSTOMER for damages from any and all other claims and causes whatsoever, regardless of the form action, whether in contract or in tort (including negligence) will, in the aggregate, be limited to the amount of the Fees actually received from CUSTOMER by KARE INTELLEX in the 12 month period immediately preceding the effective date of termination.

        (d)        IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR AN OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF THE INJURED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

        (e)        The following provisions of this Agreement shall survive termination of this Agreement for any reason: Sections 3, 5, 6, 8, and 9 - 12.

9.        Warranties, Support and Limitation of Liability.

        (a)        KARE INTELLEX warrants that the Software, when used in accordance with the Documentation, will substantially conform to the description of the Software’s operations in the Documentation.  CUSTOMER’s exclusive remedy and KARE INTELLEX’s sole liability under this warranty shall be for KARE INTELLEX to attempt through reasonable efforts to correct any material failure of the Software to perform as warranted, if such failure is promptly reported to KARE INTELLEX and, at KARE INTELLEX’s request, CUSTOMER provides KARE INTELLEX with sufficient information to reproduce or verify the defect in question.  If KARE INTELLEX cannot, after reasonable efforts, remedy such failure, CUSTOMER may terminate this Agreement.  In such event, CUSTOMER will not be obligated for any transaction which such defect existed.

        (b)        KARE INTELLEX does not warrant that use of the Software will be uninterrupted or error free, or that all errors will be corrected.

        (c)        Prioritization for failure of the Software to satisfy the warranty under this Section 9 is defined to the following levels:

                (i)  “Low”:  All Software features are available and functional in all major aspects.  Minor defects prevent ease of use or non-critical accuracy of results.

                (ii)  “Moderate”:  One or more key Software features are not functional in all major aspects, but the problem does not prevent CUSTOMER from performing critical and time sensitive activity.

                (iii)  “Critical”:  One or more key Software features do not function at all with any major aspect; or, problem prevents CUSTOMER from performing critical and time sensitive business activity.

        (d)        CUSTOMER is responsible for developing and supporting all required data extract and data import programs required to upload/download data between all applicable data repositories and CUSTOMER’s internal systems.  CUSTOMER shall develop all required data extract and data import programs per KARE INTELLEX technical specifications.  

        (e)        KARE INTELLEX will provide 24 x 7 support for CUSTOMER.  CUSTOMER will have an assigned KARE INTELLEX Customer Support Representative (“CSR”).  Assigned CSR’s are available from 8:00 a.m. to 8:00 p.m. Eastern Standard Time Monday through Friday.  A CSR will be available via beeper after normal business hour to provide support for Critical issues.  Any issues initiated after normal support hours that are deemed as Low or Moderate priority will be billed at a rate of $75.00/hour.  KARE INTELLEX will invoice CUSTOMER for such expenses, which shall be payable 15 days after receipt of the invoice.  

        (f)        Response time and policy is determined by the prioritization of the problem reported as defined above.  A status of the problem will be reported via email, phone, and/or KARE INTELLEX Web site at the periods defined below.

                (i)  Low:  Response or solution within 2 business days following day of incident being reported..  At the discretion of KARE INTELLEX, if a Software fix is required to resolve a Low priority problem, the Software fix may be scheduled for distribution at a later date.

                (ii)  Moderate:  Response or solution within 1 business day following day of incident being reported.  At the discretion of KARE INTELLEX, if Software fix is required to resolve a Low priority problem, the Software fix may be scheduled for distribution as part of KARE INTELLEX’s next regularly scheduled Software maintenance release.

                (iii)  Critical:  Response or solution within 2 hours of incident reported.  If a solution is unavailable a status report will be provided approximately every four hours thereafter.   At the discretion of KARE INTELLEX, if a Software fix is required to resolve a Low priority problem, the Software fix may be scheduled for immediate distribution, or as part of KARE INTELLEX’s next regularly scheduled Software maintenance release.

        (g)        CUSTOMER and not KARE INTELLEX is responsible for providing any telephone and data lines and Internet access necessary for the performance of the Services.

        (h)        THE FOREGOING WARRANTY IS IN LIEU OF, AND KARE INTELLEX DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.

10.        Indemnifications.  

        (a)        KARE INTELLEX will indemnify, defend, and hold harmless CUSTOMER and its directors, officers, employees, or agents, from and against any claim against any of them that the Software or Documentation infringes any U.S. copyright or issued U.S. patent, provided that (i) KARE INTELLEX is given prompt notification of such claim, (ii) KARE INTELLEX is given necessary information and assistance and sole authority to defend or settle such claim; and (iii) such claim does not arise from use or combination of the Software with other programs or data not supplied by KARE INTELLEX.

        (b)        If the Software or Documentation become, or in KARE INTELLEX’s opinion is likely to become, the subject of a claim described in this Section 10, KARE INTELLEX shall, at its option and without liability to CUSTOMER, (i) procure for CUSTOMER the right to continue using such item, (ii) replace or modify the item to make it non-infringing but operating substantially with the same functionality or (iii) if neither of the foregoing options is reasonably available, terminate this Agreement.

        (c)        The foregoing state the exclusive remedy of CUSTOMER and KARE INTELLEX’s entire liability with respect to infringement of patents, copyrights, trade secretes or other proprietary rights.

11.         Confidentiality.

        (a)        The Software and Documentation, and any other information provided by KARE INTELLEX under this Agreement that CUSTOMER knows or reasonably should know is intended by KARE INTELLEX to be confidential, constitute the confidential information of KARE INTELLEX (“Confidential Information”). CUSTOMER shall use the Confidential Information solely to utilize the Software.  Customer shall not disclose the Confidential Information to any third party and shall protect the Confidential Information with the same degree of care that it uses to protect its own confidential information of a similar nature, but in any case, no less than a reasonable standard of care.

        (b)        CUSTOMER will have no liability for disclosure of Confidential Information: (i) that is either now or by the time of disclosure generally available to the public through no fault or breach on the part of the CUSTOMER; or (ii) that CUSTOMER is required to disclose by court order or other governmental action, and then only to the extent such disclosure is required and only if CUSTOMER provides reasonable notice to allow KARE INTELLEX to contest such disclosure or its scope.

        (c)         CUSTOMER acknowledges that the unauthorized disclosure or use of the Software, Documentation or other Confidential Information will cause immediate and irreparable harm to KARE INTELLEX for which money damages cannot adequately compensate KARE INTELLEX.  

12.        Miscellaneous Terms.

        (a)  This Agreement is the complete agreement between the parties and supersedes all other agreements between the parties relating to the subject matter of this Agreement.  (b)  No amendment of this Agreement will be valid unless in writing and signed by both parties.  (c)  The waiver by either party of any default or breach of this Agreement must be in writing and will not constitute a waiver of any other default or breach or the same default or breach at a later time.  (d)  This Agreement will be interpreted under the law of the state of Ohio without regard to its provisions on conflicts of laws.  (e)  Any action relating to this Agreement or any breach thereof shall be brought only in the court of Common Pleas of Franklin County, Ohio and each party hereby submits to the personal jurisdiction of such court for such purpose, and waives any objection to venue in such court.  (f)  Nothing in this Agreement will create a partnership or a joint venture between the parties.  (g)  CUSTOMER will not employ or solicit for employment any employee of KARE INTELLEX during the Term or for two years after the termination of this Agreement for any reason.  (h)  CUSTOMER may not assign this Agreement in whole or in part through the operation of law or otherwise without the prior written consent of KARE INTELLEX.  (i)  Neither party will be liable for any delay in performance or failure to perform (other than the payment of money) resulting from circumstances beyond its control.  (j)  All notices under this agreement will be sent to either party at the address listed in the preamble to this Agreement.  

        IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in their names by their duly authorized representatives as of the effective date in the Client Contract.

KARE INTELLEX, INC   BUSINESS ASSOCIATE AGREEMENT

This Privacy Agreement ("Agreement"), is effective upon signing this Agreement and is entered into by and between KARE INTELLEX, INC. ("Covered Entity") and …………………………. (the "Business Associate").

1. Term. This Agreement shall remain in effect for the duration of this Agreement and shall apply to all of the Services delivered by the Business Associate pursuant to this Agreement.

2. HIPAA Assurances. In the event Business Associate creates, receives, maintains, or otherwise is exposed to personally identifiable or aggregate patient or other medical information defined as Protected Health Information ("PHI") in the Health Insurance Portability and Accountability Act of 1996 or its relevant regulations ("HIPAA") and otherwise meets the definition of Business Associate as defined in the HIPAA Privacy Standards (45 CFR Parts 160 and 164), Business Associate shall:

1. Recognize that HITECH (the Health Information Technology for Economic and Clinical Health Act of 2009) and the regulations there under (including 45 C.F.R. Sections 164.308, 164.310, 164.312, and 164.316), apply to a business associate of a covered entity in the same manner that such sections apply to the covered entity;
2. Not use or further disclose the PHI, except as permitted by law;
3. Not use or further disclose the PHI in a manner that had Kare Intellex, INC done so, would violate the requirements of HIPAA;
4. Use appropriate safeguards (including implementing administrative, physical, and technical safeguards for electronic PHI) to protect the confidentiality, integrity, and availability of and to prevent the use or disclosure of the PHI other than as provided for by this Agreement;
5. Comply with each applicable requirements of 45 C.F.R. Part 162 if the Business Associate conducts Standard Transactions for or on behalf of the Covered Entity;
6. Report promptly to Kare Intellex, INC any security incident or other use or disclosure of PHI not provided for by this Agreement of which Business Associate becomes aware;
7. Ensure that any subcontractors or agents who receive or are exposed to PHI (whether in electronic or other format) are explained the Business Associate obligations under this paragraph and agree to the same restrictions and conditions;
8. Make available PHI in accordance with the individual’s rights as required under the HIPAA regulations;
9. Account for PHI disclosures for up to the past six (6) years as requested by Covered Entity, which shall include: (i) dates of disclosure, (ii) names of the entities or persons who received the PHI, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the purpose and basis of such disclosure;
10. Make its internal practices, books, and records that relate to the use and disclosure of PHI available to the U.S. Secretary of Health and Human Services for purposes of determining Customer’s compliance with HIPAA; and

11. Incorporate any amendments or corrections to PHI when notified by Customer or enter into a Business Associate Agreement or other necessary Agreements to comply with HIPAA.

3. Termination Upon Breach of Provisions. Notwithstanding any other provision of this Agreement, Covered Entity may immediately terminate this Agreement if it determines that Business Associate breaches any term in this Agreement. Alternatively, Covered Entity may give written notice to Business Associate in the event of a breach and give Business Associate five (5) business days to cure such breach. Covered Entity shall also have the option to immediately stop all further disclosures of PHI to Business Associate if Covered Entity reasonably determines that Business Associate has breached its obligations under this Agreement. In the event that termination of this Agreement and the Agreement is not feasible, Business Associate hereby acknowledges that the Covered Entity shall be required to report the breach to the Secretary of the U.S. Department of Health and Human Services, notwithstanding any other provision of this Agreement or Agreement to the contrary.

4. Return or Destruction of Protected Health Information upon Termination. Upon the termination of this Agreement, unless otherwise directed by Covered Entity, Business Associate shall either return or destroy all PHI received from the Covered Entity or created or received by Business Associate on behalf of the Covered Entity in which Business Associate maintains in any form. Business Associate shall not retain any copies of such PHI. Notwithstanding the foregoing, in the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible upon termination of this Agreement, Business Associate shall provide to Covered Entity notification of the condition that makes return or destruction infeasible. To the extent that it is not feasible for Business Associate to return or destroy such PHI, the terms and provisions of this Agreement shall survive such termination or expiration and such PHI shall be used or disclosed solely as permitted by law for so long as Business Associate maintains such Protected Health Information.

5. No Third Party Beneficiaries. The parties agree that the terms of this Agreement shall apply only to themselves and are not for the benefit of any third party beneficiaries.

6. De-Identified Data. Notwithstanding the provisions of this Agreement, Business Associate and its subcontractors may disclose non-personally identifiable information provided that the disclosed information does not include a key or other mechanism that would enable the information to be identified.

7. Amendment. Business Associate and Covered Entity agree to amend this Agreement to the extent necessary to allow either party to comply with the Privacy Standards, the Standards for Electronic Transactions, the Security Standards, or other relevant state or federal laws or regulations created or amended to protect the privacy of patient information. All such amendments shall be made in a writing signed by both parties.

8. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the then most current version of HIPAA and the HIPAA privacy regulations.

9. Definitions. Capitalized terms used in this Agreement shall have the meanings assigned to them as outlined in HIPAA and its related regulations.

10. Survival. The obligations imposed by this Agreement shall survive any expiration or termination of this Agreement.