SENTIRE SYSTEM SOFTWARE SUBSCRIPTION AGREEMENT

This Software Subscription Agreement (this “Agreement”), is entered into by and between Sentire, LLC (“Sentire”), a Texas limited liability company, at 4108 Galt Avenue, Fort Worth, Texas 76109, and the physician or physician group (the “Customer”) that has agreed to be governed by this Agreement by accessing the Sentire Website located at www.sentirecare.com or www.sentirepro.com (collectively, the “Site”). Sentire and the Customer shall be referred to herein as a “Party” and collectively as “Parties”. This Agreement shall be effective on the date that Customer accepts it on the Site (the “Effective Date”).

WHEREAS, Sentire offers physicians and physician practice groups a web-based physician documentation, coding, and billing system (the “Service”); and

WHEREAS, the Customer desires to utilize the Service, and Sentire is willing to furnish the Service, as provided herein.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereby agree as follows:

1. GRANT OF ACCESS

   1. Subject to Customer’s compliance with the terms and conditions of this Agreement, Sentire grants to Customer a nonexclusive, nontransferable, nonsublicenseable, revocable right to use and access the Service for Customer’s business purposes.

2. BILLING AND FEES

   1. The fees that Customer shall pay to Sentire for access to and use of the Service, and the terms upon which such fees shall be paid to Sentire, are set out respectively on the Site
   2. Except as otherwise provided in this Section 2.2, the fees payable by Customer under this Agreement do not include any taxes and fees (including, but not limited to, any applicable withholding taxes and VAT and business taxes, or any other tax or fee) levied by any duly constituted taxing authority against the fees payable by Customer to Sentire. Customer will be responsible for and will pay and/or reimburse and indemnify Sentire for all taxes or similar charges (including penalties and interest), whether federal, state, local, foreign or otherwise, including without limitation withholding taxes, which are related to this Agreement, other than taxes imposed on the net income of Sentire. All payments due to Sentire under this Agreement shall be made free and clear of any taxes.
   3. Customer shall pay a late charge of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, on any fees not paid within thirty (30) days of the due date. Sentire may also increase its fees charged hereunder upon thirty (30) days’ prior written notice to Customer in the event Sentire finds that Customer is using the Service not in compliance with the terms and conditions of this Agreement.
   4. If any amount owed by Customer under this Agreement is thirty (30) or more days overdue, Sentire may, without limiting Sentire’s other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend access to and use of the Service until such amounts are paid in full. Sentire will give Customer at least seven (7) days’ prior notice that Customer’s account is overdue before suspending access to and use of the Sentire Service by Customer.

3. CUSTOMER REPRESENTATIONS, WARRANTIES AND OBLIGATIONS

   1. Representations and Warranties: Customer represents to Sentire that it:
      1. is an entity duly organized and validly existing under the laws of its jurisdiction of organization;
      2. is qualified and licensed to do business and practice medicine and is in good standing in the state of Texas;
      3. has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement;
      4. all clinicians of Customer hold and will at all times maintain unrestricted license to practice medicine and/or advanced practice nursing in the relevant state; and
      5. No doctor, nurse or other clinician of Customer has ever been suspended by any licensing board of any state, medical society, specialty board, medical staff, or any healthcare facility.
   2. Obligations: Customer’s obligations under this Agreement are as follows:
      1. All medical decision making shall be the responsibility of the Customer. The owners, members, officers, directors, and other related parties of Sentire shall not be liable for physician medical malpractice tort claims.
      2. Customer shall practice ethically in his or her Patient care decisions.
      3. Customer shall provide Patients with nearly 24/7 coverage for health concerns initiated by the Patients. At the discretion of the Customer, the Customer may be responsible for this patient coverage individually or share coverage with colleagues. This nearly 24/7 access shall not always be immediate.
      4. Customer shall make every effort to care for all patient health concerns in the outpatient setting whenever possible. The Customer shall use standard judgment in situations where the best facility for a patient is determined to be different from the primary care office, such as an emergency room or hospital.
      5. Customer agrees to prepare and maintain administrative and business records, including medical records, related to all Patients that utilize the Service in such format and upon such intervals as Sentire reasonably requires. Customer further agrees to maintain thorough, complete and accurate medical and other records with respect to the Services and treatment rendered to any Patient pursuant to this Agreement as required by Sentire.
      6. Customer shall ensure that all clinicians maintain professional liability insurance and coverages in amounts required by applicable law.

4. SENTIRE REPRESENTATIONS, WARRANTIES AND OBLIGATIONS

   1. Representations and Warranties: Sentire represents to Customer that it:
      1. is an entity duly organized and validly existing under the laws of its jurisdiction of organization;
      2. is in good standing in the state of Texas; and
      3. has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.
   2. Obligations: Sentire will exercise reasonable efforts to perform the Services in accordance with industry standards.

5. LIMITED RIGHTS AND OWNERSHIP

   1. Limited Rights.The rights of Customer to use the Service are limited to fulfilling Customer’s own internal business needs during the Term. Customer’s right to use the Service is personal, and non-transferable, non-exclusive and limited to the Term. There are no implied licenses and Sentire hereby reserves all rights not expressly granted to Customer under this Agreement. Without limiting the generality of the foregoing, Customer may not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Service; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Products or Services, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Service to any third party; (iv) write or develop any derivative works based upon the Service; (v) modify, adapt, tamper with or otherwise make any changes to the Service; (vi) obliterate, alter, or remove any proprietary or intellectual property notices from the Service; (vii) create Internet “links” to or from the Service, or “frame” or “mirror” any content, (iii) use the Service to provide services to third parties, or otherwise use the same on a ‘service bureau’ basis; or (ix) otherwise use or copy the same except as expressly permitted herein.
   2. Sentire Ownership.The equipment, infrastructure, websites and other materials provided by Sentire in the performance of the Service and all intellectual property embodied therein will at all times remain the exclusive, sole and absolute property of Sentire or its licensors. Customer does not acquire any right, title, or interest in or to such equipment and materials or intellectual property. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to the Service and the related logos, product names, etc. and all rights not expressly granted are reserved by Sentire and its licensors. Customer may not obscure, alter or remove any copyright, patent, trademark, service mark or proprietary rights notices on any Sentire materials.
   3. Customer Ownership.Sentire acknowledges that as between the Parties to this Agreement, Customer or its Patients have exclusive rights to any and all customer data. Customer grants to Sentire a non-exclusive, royalty free license, to use equipment, software, customer data, or other material of Customer solely for the purpose of performing its obligations under the Agreement. Customer grants Sentire a paid-up, worldwide, irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your users during the term of this Agreement relating to the operation of the Services (“Feedback”). Customer acknowledges and agrees that Feedback is not Confidential Information of Customer.

6. TERMS AND TERMINATION

   1. Initial and Renewal Terms: The term of this Agreement shall be for a period of one (1) year, and will commence on the Effective Date (“Initial Term”). Unless earlier terminated as herein provided, this Agreement will be automatically extended for an additional one (1) year period (each a “Renewal Term”) upon the expiration of the Initial Term and each Renewal Term.
   2. Termination:
      1. Failure to comply with this Agreement may result in the Customer’s forfeiture of the opportunity to use the Service at any time, at the sole discretion of Sentire.
      2. Notwithstanding anything herein to the contrary, the Customer reserves the right to immediately terminate this Agreement upon written notice to Sentire in the event any qualification, license, certification, permit or approval required for Sentire’s provision of the Service hereunder is suspended, revoked, or is unable to be obtained.
      3. Either Party may terminate this Agreement at any time upon ninety (90) days prior written notice to the other Party.
   3. Obligation Upon Expiration or Termination:Upon expiration or sooner termination of this Agreement, all amounts owed by the Customer to Sentire shall be immediately due and payable and the Customer shall return to Sentire, in good working condition, normal wear and tear excepted, all of Sentire’s equipment, formulary documents, policies and procedures manuals, forms and any other documents, information, etc. belonging to Sentire. The Customer shall not reproduce or permit the reproduction of Sentire’s documents, policies or procedure manuals and forms, nor circulate such to any individual or entity except as required pursuant to this Agreement. Termination of this Agreement shall not relieve either Party from liability for any breach of this Agreement occurring prior to the effectiveness of such termination.

7. WARRANTIES AND DISCLAIMERS

   1. Sentire warrants that the Service, as updated and used in accordance with the documentation, will operate in all material respects in conformity with the functional specifications described in the documentation. If the Service does not perform as warranted, Customer shall promptly provide written notice to Sentire that describes the deficiency in the Service. FOR ANY BREACH OF THE SERVICE WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND SENTIRE’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF SENTIRE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, SENTIRE OR CUSTOMER MAY TERMINATE THIS AGREEMENT. If Customer elects not to terminate this Agreement, Customer waives all rights for the applicable warranty cure set forth herein. Sentire is not responsible for any claimed breach of any warranty set forth in this Section caused by: (i) modifications made to the Service by anyone other than Sentire; (ii) the combination, operation or use of the Service with any items that are not supplied by Sentire; (iii) Customer’s failure to use any new or corrected versions of the Service made available by Sentire; (iv) Sentire’s adherence to Customer’s specifications or instructions; or (v) errors caused by products or equipment not provided by Sentire. Sentire does not warrant and is not responsible for (i) any Third-Party Products, or (ii) services not provided solely by Sentire, including its agents, representatives and subcontractors.
   2. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF, AND SENTIRE, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO SERVICE INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE SERVICE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, (iii) ANY WARRANTY WITH RESPECT TO THIRD PARTY PRODUCTS, SOFTWARE OR SERVICE AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY SENTIRE, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN.

8. CONFIDENTIALITY

   1. Each Party acknowledges that confidential information, including trade secrets and confidential technical, financial and business information, systems (electronic or manual), methods, procedures and written materials employed by a Party that such Party derives actual or potential value from not being generally known to others, including the terms of this Agreement and any other manuals, documents and information specifically designated by a Party orally or in writing as confidential or which by its nature would reasonably be understood to be confidential or proprietary (collectively, “Confidential Information”) may be exchanged between the Parties pursuant to this Agreement. Each Party shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other Party. Each Party agrees that it will not disclose or use the Confidential Information of the other Party except for the purposes of this Agreement and as authorized herein.
   2. Confidential Information shall not include information that is: (i) already known by the recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient, (iii) rightfully received from a third party without any obligation of confidentiality, (iv) independently developed by the recipient without use of the Confidential Information of the disclosing Party, (v) approved by the disclosing Party for disclosure, or (vi) required to be disclosed pursuant to a subpoena, or requirement of a governmental agency or law so long as the recipient provides the other Party with notice prior to any such disclosure and takes all reasonable steps to maintain the information in confidence.
   3. Notwithstanding anything to the contrary herein, the rights and obligations set forth in this Section, may be enforced by legal action seeking injunctive relief. This Section 8 shall survive the termination of this Agreement.

9. INDEMNIFICATION

   1. By Sentire. Sentire will defend or settle, at its option and expense, any action, suit or proceeding brought against Customer that the Service infringes a third party’s patent, registered copyright, or registered trademark (“Claim”). Sentire will indemnify Customer against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such Claim, provided that Customer is not in material breach of any agreement with Sentire. If it is adjudicated that an infringement of the Service by itself and used in accordance with the Agreement infringes any USA patent, registered copyright, or registered trademark, Sentire shall, at its option: (i) procure for Customer the right to continue using the Service; (ii) replace or modify the same so it becomes non-infringing; or (iii) Sentire may terminate this Agreement. Notwithstanding any other terms in this Section, Sentire shall have no liability for infringement claims and Customer shall defend and indemnify Sentire if the alleged infringement is based on or arises from (a) combination or use of the Service with hardware, software or other materials not provided by Sentire, (b) the modification of the Service by anyone other than Sentire, (c) the use of the Service not in accordance with the documentation or this Agreement, or (d) the use of other than the then most current release of the Service made available by Sentire (subsection (a) through (d) above referred to as the “Excluded Matters”). THIS SECTION STATES SENTIRE’s ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
   2. By Customer. Customer will defend or settle, at its option and expense, any action, suit or proceeding brought against Sentire (i) with respect to the Excluded Matters; (ii) alleging that Customer’s data, or Customer’s use of the Service in breach of this Agreement, infringe or misappropriate a third party’s intellectual property rights or violates applicable law; (iii) arising from Customer’s breach of any representation, warranty or obligation contained in this Agreement; and (v) arising from Customer’s provision of medical practice services to Customer Patients.
   3. Mutual Obligations. A Party’s indemnification obligations are subject to the following (a) the indemnified party gives written notice of the claim promptly to the indemnifying party; (b) the indemnified party gives the indemnifying party sole control of the defense and settlement of such third party claim; (c) the indemnified party provides the indemnifying party, at the indemnifying party’s expense, all reasonable information and assistance in connection with such third party claim; and (d) the indemnifying party may not settle such third party claim unless such third party unconditionally releases any applicable indemnified party from all liability.

10. LIMITATION OF LIABILITY

    1. Limitation of Types of Damages. EXCEPT AS PROHIBITED BY LAW, SENTIRE AND ITS SUPPLIERS SHALL NOT IN ANY CASE BE LIABLE TO CUSTOMER, CUSTOMER PATIENTS OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OR LIABILITIES FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ALL ORDER FORMS, ADDENDA OR AMENDMENTS THERETO, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, INCLUDING A BREACH THEREOF OR INCLUDING WITHOUT LIMITATION, DAMAGES OR LIABILITIES FOR LOST PROFIT, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA, OR CLAIMS BY ANY THIRD PARTY REGARDLESS OF WHETHER SUCH DAMAGES OR LIABILITIES HAVE BEEN COMMUNICATED TO SENTIRE AND REGARDLESS OF WHETHER SENTIRE HAS OR GAINS KNOWLEDGE OF THE EXISTENCE OF SUCH DAMAGES OR LIABILITIES
    2. Limitation of Liability. EXCEPT AS PROHIBITED BY LAW, THE CUMULATIVE, AGGREGATE LIABILITY OF SENTIRE AND ITS SUPPLIERS (INCLUDING ATTORNEYS FEES AWARDED UNDER THIS AGREEMENT) TO CUSTOMER, CUSTOMER PATIENTS AND ANY OTHER THIRD PARTIES FOR ALL CLAIMS, LIABILITIES AND DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ALL ITS ORDER FORMS, ADDENDA OR AMENDMENTS THERETO, WHETHER IN CONTRACT OR TORT OR BY WAY OF INDEMNITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER TO SENTIRE FOR THE SERVICE GIVING RISE TO THE CLAIM.

11. MISCELLANEOUS

    1. Insurance. Sentire covenants and represents that throughout the terms of this Agreement, it will maintain, at its sole cost, a professional liability occurrence insurance policy with coverage amounts not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. The premiums with respect to such insurance shall be paid by Sentire. Upon request, Sentire will provide the Customer with a current and valid Certificate of Insurance which evidences such insurance coverage.
    2. Renegotiation: The Parties acknowledge and agree that they have entered into this Agreement with the intent of conducting their relationship in full compliance with applicable federal, state, and local laws. In the event there is a change in federal, state or local laws, regulations or programs for the delivery of medical care or reimbursement or any action is taken by a governmental authority under applicable law such that the provisions of any services hereunder or the payment of any compensation or benefit pursuant to this Agreement would (1) violate applicable law or regulations, or (2) results in a material adverse effect on the legitimate expectations of either Party at the time such Party entered into this Agreement, the Parties agree to renegotiate this Agreement in good faith to restructure their relationship to comply with applicable law, regulations, government policies, and to fulfill, to the maximum extent possible, the legitimate expectations of both Parties on the date of this Agreement. If any restructuring is not feasible after such good faith negotiations, either Party may terminate this Agreement upon ten (10) days written notice thereof to the other Party, unless an earlier termination date is required by law.
    3. Force Majeure: If either Party fails to perform its obligations hereunder (except for the obligation to pay money) because labor strikes, accidents, acts of God, weather conditions or action or inaction of any government body or other proper authority or other causes beyond its control, then such failure to perform will not be deemed a default hereunder and will be excused without penalty until such time as said Party is capable of performing.

    4. Delivery of Notices: Unless otherwise directed in writing by the Parties, all notices given hereunder shall be sent to the addresses, as applicable, set forth below or to other addresses and to such other persons as either Party may from time to time designate by notice given as herein provided on the signature page hereof. All notices, requests, consents and other communication under this Agreement shall be in writing and shall be deemed to have been delivered on the date personally delivered or on the date deposited in the United States Postal Service, postage prepaid, by certified mail, return receipt requested, or telegraphed and confirmed, or delivered by electronic facsimile and confirmed.

       To the Customer:

       The address provided by Customer through the Site

       
       

       To Sentire:

       Sentire, LLC
       Attn: Dr. Richard Young
       4108 Galt Avenue
       Fort Worth, Texas 76109

    5. Successors and Assignments: This Agreement will be binding upon and inure to the benefit of both Parties and their successors and assigns. Nothing in this Agreement is intended nor will be deemed to confer any benefits on any third party. Neither Party may assign any of its respective rights, duties, and/or obligations under this Agreement without the prior written consent of the other Party; provided, however, Sentire may assign and transfer its rights and obligations under this Agreement (i) to any affiliates and (ii) any person or entity which purchases or otherwise acquires the assets and operations of Sentire. Notwithstanding the assignment, the Customer shall remain liable for any amounts due and owing under this Agreement.
    6. Governing Law and Venue Selection: This Agreement shall be construed in accordance with the laws of the State of Texas and applicable federal law and all claims and/or lawsuits in connection with this Agreement must be brought in Tarrant County.
    7. Waiver: Waiver by either Party of a breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any prior, concurrent or subsequent breach. None of the provisions of this Agreement will be considered waived by either Party unless said waiver is provided in writing.
    8. Counterparts; Facsimiles: This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall be deemed to constitute one agreement. This Agreement may be transmitted by facsimile, and it is the intent of the parties for the facsimile (or a photocopy thereof) of any autograph printed by a receiving facsimile machine to be an original signature and for the facsimile (or a photocopy thereof) and any complete photocopy of the Agreement to be deemed an original counterpart.
    9. Entire Agreement; Amendment: This Agreement and any Amendments or Addenda hereto constitute the entire agreement between the Parties regarding the subject matter hereof and supersede all prior or contemporaneous discussions, representations, correspondence and agreements, whether oral or written, pertaining thereto. This Agreement may be amended or modified only by a writing duly executed by both Parties.
    10. Severability: If any term or provision of this Agreement is held invalid or unenforceable to any extent, the remainder of this Agreement will not be affected thereby and each term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law, unless doing so will
    11. Attorney’s Fees: If either Party brings an action against the other to enforce any condition or covenant of this Agreement, the prevailing Party shall be entitled to recover its court costs and reasonable attorneys’ fees incurred in such action.
    12. Compliance with Federal Anti-Kickback/Anti-Solicitation Laws: The Parties, including but not limited to the officers, directors, administrators, and employees of the Parties, hereby acknowledge that it is the full intent of the parties to obey all federal and state laws that prohibit unlawful remuneration. In that regard, the Parties represent one to the other that this agreement is not an offer, payment, solicitation or receipt of any remuneration in return for the referral or an inducement of referral of any individual to any person for the furnishing or arranging for the furnishing of any item or service for which the payment may be made in whole or in part under government programs, including but not limited to Medicare or Medicaid. The amounts to be paid to Sentire hereunder have been determined by the Parties through good faith and arms-length bargaining to be the fair market value of the services to be rendered hereunder. The Parties additionally represent one to the other that this Agreement is not an offer, payment, solicitation or receipt of any remuneration in return for the purchasing, leasing, or ordering or arranging for or recommending purchasing, leasing or ordering of any good, facility, service or item for which payment may be made in whole or in part under government programs, including but not limited to Medicare or Medicaid.

EXHIBIT B

Terms of Service

These Terms of Service apply to the use of the Sentire Service.

Customer shall:

1. Generate a bill for Patient services at the end of each Patient office visit or telephone, email, or text visit.
2. Follow all Sentire guidelines for documentation, coding, and billing when billing Patients under the Service.
3. Comply with Sentire’s billing and pricing structure for all Patients using the Service.

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