MASTER AGREEMENT

This Master Agreement, the schedules, exhibits, and any later addenda (the “Agreement”), effective as of the Pricing Supplement Effective Date set forth on the applicable Pricing Supplement (the "Effective Date"), is made and entered into by and between EnlivenHealth, Inc., (a wholly-owned subsidiary of Omnicell, Inc.), a North Carolina corporation, and its assigns and wholly owned subsidiaries, as applicable, having a business address of 500 Cranberry Woods Dr, Cranberry Twp., PA 16066, (“Licensor”) and the customer set forth on the applicable Pricing Supplement, having a business address as set forth on the applicable Pricing Supplement , (“Customer”) (each individually is referred to as a “Party,” and together they are the “Parties” to the Agreement).

General Terms and Conditions

Schedule A Reserved
Schedule B Reserved
Schedule C Reserved
Schedule D Support Services Schedule
Schedule E Tax Schedule
Schedule F Business Associate Schedule

Each Party acknowledges that it has read the terms and conditions set forth in this Agreement and all schedules, attachments, exhibits, and addenda hereto, understands all terms and conditions, and agrees to be bound thereby. This Agreement is an integrated, final, complete, and exclusive statement of the Parties’ understandings with respect to the subject matter hereof. This Agreement supersedes all previous agreements, intentions, or representations, oral or written, relating hereto. This Agreement may be modified only by a written amendment signed by a duly authorized representative of each Party, and not by course of performance. No additional or contradictory terms and conditions included on any Customer purchase order (whether offered during the initial transaction or future transactions) shall operate as an amendment to this Agreement, and shall have no force and effect, even if such terms and conditions expressly state that they are intended to supersede the terms of this Agreement, Licensor is required to countersign the purchase order, and/or Licensor fails to object to such terms and conditions.
By signing the applicable Pricing Supplement, each signatory represents that he or she has the authority to bind his or her respective Party to this Agreement.

GENERAL TERMS AND CONDITIONS

*All defined terms are capitalized and defined herein, including the definitions set forth in Section 9 of these General Terms and Conditions

1. ESTABLISHING AND DELIVERING THE ORDER.

1.1 1.1 Ordering Terms and Conditions. Once Customer has approved a particular quote from Licensor, Licensor will convert such quote having received the Customer’s acknowledgement into the form of a Pricing Supplement. Such Pricing Supplement is intended to define a separate contract particular to the order, incorporating by reference the terms and conditions of the applicable portions of this Agreement. A Pricing Supplement may also contain other terms or conditions, mutually agreed upon by the Parties applying specifically to the particular order but may not be directly covered by this Agreement. In the event of a conflict in terms as between a Pricing Supplement and this Agreement, the Pricing Supplement takes priority of meaning with respect to the subject matter of such Pricing Supplement. Once the Pricing Supplement is authorized by Customer, Customer shall provide to Licensor the executed Pricing Supplement. Customer agrees each Pricing Supplement will be signed by a representative having the authority to bind Customer and Licensor may presume such representative has such authority.

Further to the above, Customer represents, warrants, and covenants: (a) each Authorized Customer Location is an affiliate of Customer and has the right to purchase or receive Delivered Products pursuant to this Agreement, (b) Customer has the legal right and hereby does contractually bind each Authorized Customer Location to the terms and conditions of this Agreement, (c) each Authorized Customer Location’s transactions for Delivered Products will be governed by this Agreement, as executed by Customer on behalf of the applicable Authorized Customer Location; and (d) Customer is responsible for any obligations or breach of this Agreement by an Authorized Customer Location.

1.2 Order Acceptance. A binding order is created when Licensor accepts and executes the Customer-executed Pricing Supplement. Upon acceptance and execution of the applicable Pricing Supplement, Licensor agrees to deliver the Delivered Products, or make it available, in accordance with the terms of this Agreement and the applicable Pricing Supplement.

1.3 Payment Terms and Late Fees. Customer agrees to pay, when due, all Scheduled Payments. Unless otherwise expressly stated in an applicable Pricing Supplement, all amounts due under this Agreement will be invoiced to Customer upon shipment of the Delivered Products or Licensor making the applicable Licensed Software available to Customer and will be due and payable by Customer thirty (30) days after the date of such invoice. Payments shall be accomplished vie Electronic Funds Transfer (EFT) or Automated Clearing House (ACH). Any amounts due under this Agreement with respect to such Delivered Products not received by Licensor within fifteen (15) days of the due date shall be subject to (a) a late fee of one and a half percent (1 1/2%) per month or the maximum charge permitted by law, whichever is less, and (b) a service charge of five percent (5%) of the amounts overdue.
1.4 Taxes. Unless Customer is tax exempt from the applicable tax, has completed Schedule E, and provided Licensor with Customer’s tax exempt certificate as described below, Customer will pay all taxes, duties, levies, tariffs or similar charges of any kind (including sales, use, property, withholding or value added taxes) imposed by any federal, state, local, or other governmental entity for products or services provided under this Agreement, excluding only taxes based solely on Licensor's net income (collectively, “Taxes”). Customer agrees to pay any invoices for Taxes in a timely manner.

To the extent Customer is exempt from any Taxes imposed for Delivered Products or Support Services provided under this Agreement, then Customer agrees to complete and provide to Licensor the tax document set forth in Schedule E, to identify specifically the Taxes from which Customer is exempt and to provide Licensor with the governmental certificate evidencing such exemption. Should Customer’s tax-exempt status change during the Term, then the previous paragraph will apply from the date Customer’s change in tax status becomes effective.

2. DELIVERY; INSTALLATION AND ACCEPTANCE.

2.1 Delivery. In the event there is a hardware component included on the Pricing Supplement, Licensor will use commercially reasonable efforts to make hardware listed on the Pricing Supplement available to Customer’s installation site pursuant to the terms of the Pricing Supplement, or on a schedule to be mutually determined by Customer and Licensor within the Project Plan (as defined in Section 2.3 below). Unless otherwise stated on an applicable Pricing Supplement, Customer acknowledges that it shall accept delivery of any such hardware within 30 days following Customer’s access to the Delivered Products. Unless otherwise stated in a Pricing Supplement, all shipments are FOB destination, provided however, shipping and freight will be arranged and invoiced by Licensor but paid by Customer. Licensor agrees to assume and bear the entire risk of casualty or damage to any hardware components included among the Delivered Products from any cause whatsoever from the date of shipment from Licensor’s dock to Customer’s destination premises. Customer agrees to assume and bear the entire risk of casualty or damage to the same from any cause whatsoever from the date of delivery acceptance at Customer’s premises. No casualty or damage, after such delivery, will relieve Customer from the obligation to make Scheduled Payments or to comply with any other obligations under this Agreement. Customer’s acceptance of delivery of any hardware component within Delivered Products hereunder will be deemed Customer’s acknowledgement that (a) listed hardware in the applicable Purchase Order have been received, and (b) such hardware shows no obvious signs of performance defects. Customer’s acceptance of delivery does not constitute or imply Customer’s acceptance of installation or that the Delivered Product is in working order.

2.2 Licensor’s Installation Obligations. Licensor agrees to remotely install the Delivered Product identified in a Pricing Supplement at the quoted amounts set forth in such Pricing Supplement. Licensor further agrees to work with Customer to enter into a mutually agreeable Project Plan (as is defined in Section 2.3 below) to ensure proper scheduling, installation, and implementation. Licensor will make commercially reasonable efforts to complete the installation in a timely manner in accordance with the Project Plan.

2.3 Customer’s Installation Commitments. If applicable, Customer agrees to (i) participate (and make available for participation) all appropriate Customer representatives in a pre-implementation meeting, at a time and location mutually acceptable to the Parties, during which the Parties will mutually agree upon an implementation project plan and schedule (the “Project Plan”) to be reasonably adjusted by mutual agreement of the Parties as conditions might change during the installation process and (ii) perform the necessary technology work within Customer’s technology environment to enable the go-live of the Delivered Products.

2.4 Installation Acceptance. When each item identified in the applicable Pricing Supplement and delivered, or otherwise available, to Customer, including Licensed Software, hardware, and related Documentation (“Delivered Product”) is successfully installed, or otherwise available to Customer, and is, in all material respects, up and running in accordance with its Functional Specifications, Customer agrees to promptly sign an acknowledgement form confirming the foregoing. As may be required from time to time as applicable, in order to facilitate Customer’s signature on an acknowledgement form, Licensor agrees to conduct a demonstration showing that the Delivered Product functions as set forth in the previous sentence. If Licensor conducts such demonstration successfully, and within ten (10) days thereafter Customer does not either: (a) sign and return to Licensor the acknowledgement form, or (b) provide Licensor with written notice detailing the material nonconformities between the Delivered Products and the applicable Functional Specifications, then the Delivered Product will be deemed accepted by Customer. The foregoing does not limit Licensor’s other obligations to Customer, or Customer’s other rights and remedies, as set forth in this Agreement.
2.5 Customer Provided Products. Customer will be solely responsible for procuring, purchasing, installing, and maintaining all equipment, telephone lines, communications interfaces, Customer operating systems or support software and other hardware necessary to operate the Delivered Products, as more fully described in the applicable Project Plan. All such Customer-provided equipment and software must meet Licensor’s specifications in order to facilitate the operation of Delivered Products.

3. License Grant.

3.1 Description of the Services. Licensor will provide Delivered Product to Customer, as described in each Pricing Supplement along with any other information relevant to Customer’s use therefore (the “Campaign Description”). In the event a Campaign Description includes communications to patients or other third parties (“Messaging”), Licensor reserves the right to reject in good faith any Messaging, or to provide Customer requirements to edit or modify the Messaging to conform to any Licensor programming and/or operating limitations before approving the delivery of the Messaging utilizing the Licensed Software. However, Customer has no right to rely upon Licensor’s failure to reject the Messaging or provide editing to Customer.

3.2 Scope of License. Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay to Licensor any and all amounts when due), Licensor grants to Customer a limited, nonexclusive, fully paid up, non-transferable, non-sublicensable license in and to Delivered Products solely for Customer’s internal business operations at the Authorized Customer Location during such period of time set forth on the applicable Pricing Supplement. Customer may: (a) use only the number of copies of the Licensed Software as identified in the Pricing Supplement; and (b) use the product Documentation only in connection with such use of the Delivered Product, as the case may be. Customer agrees, at its expense, to keep all such Delivered Product in good condition and working order.

3.3 Title. This Agreement does not grant to Customer any ownership interest in the Delivered Product. Rather, Customer has a license to use the Licensed Software and Documentation as provided in this Agreement. Delivered Product is proprietary to Licensor and Licensor and/or its licensors will have and retain all right, title and interest, including all Intellectual Property Rights therein. Customer acknowledges any trademarks, trade names, logos, service marks, or symbols adopted by Licensor to identify the Delivered Product belong to Licensor and/or its licensors, and Customer has no rights therein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Delivered Product, including any right to obtain possession of any source code, data or other technical material relating to the Delivered Product. All rights not expressly granted to Customer are reserved to Licensor.

3.4 Restrictions. Customer agrees it will not, and it will not authorize or permit any third party to:

(a) sell, lease, transfer, license or sublicense any Delivered Product, or component thereof, and/or Licensor Confidential Information, or otherwise use any of the foregoing for the benefit of any sub-licensee or third party;

(b) decompile, disassemble, re-program, analyze, reverse-engineer or create or attempt to create any derivative work or any other software based upon the Licensed Software or Documentation or any portion thereof;

(c) provide, copy, transmit, disclose, divulge, or make available to, or permit use of the Licensed Software or Documentation by any third party or entity or machine (other than as expressly provided for herein) without Licensor’s prior written consent on a case by case basis, which may be granted or withheld in Licensor’s sole discretion; or

(d) use or operate the Licensed Software, Documentation Delivered Product, or Confidential Information for any other purpose other than as prescribed by their respective Functional Specifications; and

(e) only competent and duly qualified personnel are allowed to use or operate Delivered Product, and/or access or use Confidential Information in accordance with all legal requirements and only for Customer’s internal, non-resale, business purposes.

3.5 Usernames and Passwords. Customer acknowledges and agrees that only Authorized Users access the Licensed Software using only their specific unique username and password (“User ID”). Each Authorized User is responsible for maintaining the confidentiality of the User ID and login credentials. Usernames and passwords cannot and shall not be shared or used by more than one individual Authorized User to access the Licensed Software. Customer is and remains fully responsible for all activities that occur under the Authorized User account. Furthermore, Authorized Users may only access the Licensed Software during one concurrent login session. Customer agrees to immediately notify Licensor of any unauthorized use, or suspected unauthorized use of any Authorized User account or any other breach of security. Licensor is nor will be liable for any loss or damage arising from Customer’s or any Authorized User’s failure to comply with the above requirements. Customer further acknowledges and agrees
(a) it will provide to Licensor information and other assistance as necessary to enable Licensor to establish access to the Licensed Software for the Authorized Users, and will verify all Authorized User requests for access to the Licensed Software; and

(b) it will ensure each unique username and password issued to an Authorized User will be used only by the corresponding Authorized User when accessing the Licensed Software;

(c) Customer is responsible for maintaining the confidentiality of all Authorized Users’ unique usernames and passwords and is solely responsible for all activities occurring under those unique usernames and passwords; and

(d) Customer will notify Licensor promptly of any actual or suspected unauthorized use of any account, username, or passwords, or any other breach or suspected breach of this Agreement.

(e) Licensor reserves the right to disable or terminate any Authorized User’s access to the License Software Licensor reasonably determines may have been used by an unauthorized third party, or in an unauthorized manner by Customer or Authorized User(s).

3.6 Ownership of Developments to Licensor’s Licensed Software. Customer irrevocably assigns to Licensor all of its worldwide right, title and interest in and to any and all derivative works of the Delivered Products, as well as any and all inventions or other subject matter developed relating to the Delivered Products; and all Intellectual Property Rights in or relating to any of the foregoing. Customer agrees to perform all acts reasonably necessary to perfect the foregoing assignment and to enforce and defend the assigned Intellectual Property Rights. If any or all of the foregoing subject matter is not assignable for any reason, then Customer hereby grants to Licensor a worldwide, perpetual, unrestricted, royalty-free, fully paid up, exclusive license, including the right to grant sublicenses, under all Intellectual Property Rights, to the non-assignable subject matter. If, as a matter of law, any of the foregoing is not assignable or licensable to Licensor as set forth above, Customer waives the enforcement against Licensor of any Intellectual Property Rights with respect thereto.
3.7 Feedback. Customer hereby grants Licensor a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Delivered Products, or any component thereof, including for the purpose of improving and enhancing the Services; provided Customer is not referenced in such use.

3.8 Licensed Software Audit. During the Term and for three years thereafter, or three years from the time of creation of such a book, record or account, whichever is later, Customer will keep accurate books, records and accounts as are reasonably necessary to verify Customer’s compliance with this Agreement as it pertains to the use of the Licensed Software, and will, upon reasonable notice, permit Licensor or its representatives to inspect all such books, records and accounts and to make copies of or extracts from such books. Any on-site audit conducted pursuant to this Agreement will be performed during normal business hours. When available, access to the Licensed Software for purposes of audit may be gained remotely either by internet access or by dialing into Customer’s network. Licensor and Customer’s staff hereby agree to cooperate in defining the applicable firewall access authorization requirements. The audit will be performed at Licensor’s expense; provided, the total cost of such audit will be promptly paid by Customer if such audit reveals an underpayment by Customer of greater than five (5%) percent of the amount payable by Customer to Licensor. Any unpaid amounts discovered will be promptly paid by Customer, together with interest as specified in Section 1.3 (Payment Terms and Late Fees). Licensor will minimize the disruption of Customer’s normal business activities to the extent reasonably practicable.

3.9 Data. Customer uses a pharmacy management system or other applicable third-party systems (“PMS”) to process its prescriptions, or otherwise aggregate prescription activity. Customer shall cause the PMS to collect prescription transaction data (the “Data”) and to aggregate, format, and transfer the Data to Licensor. Licensor will not be responsible for any damages arising from the transfer of the Data by Customer or PMS. Customer may revoke or modify the authorizations granted herein by providing 90 days’ written notice to the PMS vendor and Licensor.

3.10 U.S. Government Licenses. If Customer is acquiring the Licensed Software on behalf of any part of the United States Government, the Government acknowledges the Licensed Software and Documentation were developed at private expense and are deemed to be ‘commercial computer software’ and ‘commercial computer software documentation,’ respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Licensed Software and/or the accompanying Documentation by the United States Government or any of its agencies is subject to the restrictions set forth in this Agreement and as provided in DFARS provisions: 227.7202-1(a); 227.7202-3(a); 252.227-7013(c)(1)(ii) and FAR provisions: 12.212(a); 52.227-19; 52.227-14, as applicable and will be prohibited except to the extent expressly permitted herein.

3.11 Archiving and Backup Responsibilities. Licensor shall not be responsible for “backing up” and archiving any data generated by Customer’s internal use of the Licensed Software.

4. TERM AND TERMINATION.

4.1 Term. This Agreement will become effective on the Effective Date and will continue in full force and effect unless otherwise terminated as provided herein (the “Term”). Without limiting the generality of the foregoing, the term of any Pricing Supplement will be as set forth in such Pricing Supplement. Except as stated otherwise in a Schedule, attachment and/or exhibit to this Agreement, individual Schedules, attachments and/or exhibits to this Agreement may be terminated in accordance with this Section 4 (Term and Termination); provided, however, in no event will these General Terms and Conditions ever terminate while any Pricing Supplement, Schedule, attachment and/or exhibit remains in effect.

4.2 Termination for Cause. Either Party (except for Customer with respect to Section 4.2(a) below) may, by written notice to the other Party, terminate this Agreement if any of the following events occur ("Termination Events"):

(a) Customer fails to pay to Licensor any Scheduled Payments within 15 days after Licensor provides Customer written notice of such non-payment; or

(b) A Party is in material breach of any non-monetary term, condition or provision of this Agreement, which breach is not cured within thirty (30) days after the non-breaching Party gives the breaching Party written notice of such breach.

4.3 Effect of Termination. Upon termination of this Agreement for any reason, Customer will immediately discontinue use of the Delivered Product, Support, Services, Documentation and Licensor Confidential Information, and, within ten days of such termination, certify in writing to Licensor any and all copies, extracts or derivatives of the Delivered Product, Documentation, and Licensor Confidential Information, in whole or in part, in any form, have either been returned to Licensor or destroyed in accordance with Licensor's specific instructions.

4.4 Return of Delivered Products. Upon termination of this Agreement or expiration of an applicable Pricing Supplement, Customer shall return all Documentation and Delivered Product. All shipment fees associated with such return to Licensor shall be borne by Customer. Licensor will have the right to inspect Customer’s equipment to confirm all copies of the Licensed Software have been removed. If it is determined the Licensed Software has not been satisfactorily removed, Licensor will have the right to disable, throttle, and/or remove the Licensed Software. Additionally, Customer shall immediately relinquish any and all rights it may have to such Licensed Software.

4.5 Survival. Notwithstanding any termination of this Agreement, Sections 1.3 (Payment Terms and Late Fees), 1.4 (Taxes), 3.3 (Title), 3.4 (Restrictions), 3.5 (Usernames and Passwords), 3.6 (Ownership of Developments to Licensor’s Licensed Software), 3.7 (Feedback), 3.8 (Licensed Software Audit), 3.9 (Data), 3.10 (U.S. Government Licenses), 4.3 (Effect of Termination), 4.5 (Survival), 5.2 (Warranty Disclaimer), 7 (Limitation of Liability), 8 (General), 9 (Definitions) of the General Terms and Conditions, as well as Schedule E.3 (Effect of Termination) of Schedule F, will, to the fullest extent of the law, survive termination of this Agreement indefinitely. All other rights and licenses granted hereunder will cease upon termination.

5. LIMITED RIGHTS; WARRANTY AND DISCLAIMER.

5.1 Warranty.

(a) In the event Licensor is providing Messaging, Licensor will deliver such Messaging on an “as-is” and “as-available” basis. If the media on which any Licensed Software is embodied contains material defects and said media was provided by Licensor, Licensor will replace such media. This will be Licensor’s sole and exclusive obligation with respect to such warranty for the Licensed Software.

(b) Customer represents and warrants the Messaging submitted by Customer to Licensor to place is truthful and will not: (i) violate any federal, state or local law or regulation; (ii) infringe any copyright or trademark or other proprietary rights of any third party; (iii) in any way violate or infringe upon any party's privacy right, right of publicity, or any other right of any person or entity; (iv) instruct Licensor to transmit the Messaging to someone to whom Customer is not authorized to transmit the Messaging; and (v) contain, or contain references or links to any sites which contain, any material which is unlawful, harmful, abusive, hateful, obscene, threatening, libelous or defamatory.

5.2 Warranty Disclaimer. OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LICENSOR SPECIFICALLY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR TITLE. ANY WARRANTY GRANTED HEREIN DOES NOT COVER ANY PRODUCT CUSTOMER MAY USE, CREATE, OR INSTALL THAT WAS NOT PROVIDED BY LICENSOR.

IN ADDITION, LICENSOR MAKES NO REPRESENTATIONS AND WARRANTIES ABOUT THE IMPACT OF CUSTOMER’S USE OF THE LICENSOR DELIVERED PRODUCTS, MESSAGING, OR CUSTOMER’S USE OF OTHER MEDICAL DEVICES OR EQUIPMENT. THE USE OF LICENSOR DELIVERED PRODUCTS, MESSAGING, AND THE CLINICAL INFORMATION CONTAINED THEREIN IS INTENDED TO SERVE AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF PHYSICIANS, PHARMACISTS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION SHOULD NOT BE CONSTRUED TO INDICATE THE DRUG OR DRUG COMBINATION IS SAFE, APPROPRIATE OR EFFECTIVE IN ANY GIVEN PATIENT. EXCEPT AS OTHERWISE EXPLICITLY STATED IN THIS AGREEMENT, IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES ASSOCIATED WITH CUSTOMER’S USE OF THE LICENSOR DELIVERED PRODUCTS, MESSAGING, OTHER MEDICAL DEVICES OR EQUIPMENT.

5.3 . THE DELIVERED PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

6. INDEMNIFICATION.

6.1 Infringement.

(a) Indemnification. Licensor will defend or, at its sole option, settle, any third-party claim(s) brought against Customer relating to infringement of any United States trademark, copyright or trade secret by the Delivered Products, or any one of them as provided to Customer, and indemnify Customer against all damages and costs finally awarded against Customer under any such claim or action by a court of final jurisdiction. Licensor may, at its sole option and expense, either: (i) procure for Customer the right to use the infringing Delivered Products as provided herein; (ii) replace the infringing Delivered Products with a non-infringing product; (iii) modify the infringing Delivered Products so it is not infringing; or, if options (i)-(iii) are not commercially reasonable, then (iv) demand return of the infringing Delivered Products, refund the remaining value of fees associated with such Delivered Products to Customer (as amortized over a one hundred twenty (120) month life) and terminate this Agreement. Upon exercise of option (iv) in the previous sentence, Licensor will have no further obligations or liability to Customer with respect to the subject of this Section 6.1 for the infringing Delivered Product in question. Except as specified in this paragraph, Licensor will not be liable for any costs or expenses incurred without its prior written consent.

(b) Exceptions. The foregoing indemnity obligations will not apply to the extent the infringement arises as a result of (i) modifications to the Delivered Products made by any party other than Licensor or Licensor's authorized representative, (ii) use of other than the most current version of the Delivered Products generally made available by Licensor to Customer, (iii) the combination or use of the Delivered Products with materials, products, system, software or equipment not furnished by Licensor, (iv) use of the Delivered Products not in accordance with the applicable Documentation, or (v) use of the Technology outside the scope of this Agreement.

(c) THE FOREGOING STATES LICENSOR’S SOLE AND EXCLUSIVE OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

6.2 Third Party Claim Indemnification by Licensor. Licensor hereby agrees to indemnify, defend and hold harmless Customer and its successors, assigns, agents and employees against any and all third-party liabilities, losses, damages, costs, claims and expenses (including reasonable attorney fees) relating to personal injury or property damage to the extent arising as a direct result of (a) the gross negligent acts or intentional misconduct of Licensor’s employees or agents during the installation of any Licensor-provided hardware, or (b) Licensor’s provision of Support and Services. Licensor’s indemnification obligations will not apply where there is any intervening action or conduct by Customer or personnel controlled by Customer (“Intervening Conduct”) between the negligence of Licensor and the personal injury or property damage. Customer acknowledges Intervening Conduct on the part of Customer or its staff or contractors includes, without limitation any unauthorized modification or use of the Delivered Products beyond that which is contemplated in accompanying Documentation, or as set forth in the applicable Pricing Supplement.

6.3 Third Party Claim Indemnification by Customer; Indemnification for Return of Delivered Products. Customer hereby agrees to indemnify, defend and hold harmless Licensor and its successors, assigns, agents and employees against any and all third party liabilities, losses, damages, costs, claims and expenses (including reasonable attorney fees) arising out of the use, possession or control of the Delivered Products, Messaging, or any set of circumstances whereby there is any Intervening Conduct between any negligence of Licensor and the stated liability claim, including, claims arising in contract or tort, except for claims resulting from Licensor’s intentional misconduct, or claims for infringement as described in Section 6.1 (Infringement). Furthermore, with respect to any and all Delivered Products returned from Customer to Licensor, all such Delivered Products must be returned free and clear of any Protected Health Information (as defined in HIPAA) and Customer will certify to the foregoing. Customer will indemnify Licensor against any violation of any applicable laws or third-party claims arising from Customer’s breach of this obligation.

6.4 Indemnification Process. Each Party seeking indemnification pursuant to this Section 6 shall take reasonable steps to mitigate any potential expenses and shall provide the indemnifying Party with (a) prompt written notice of any such claim or action; (b) the sole control and authority over the defense or settlement of such claim or action (provided the indemnified Party is not required to make any admissions or ongoing commitments without prior authorization); and (c) proper and full information and assistance to settle and/or defend any such claim or action. The indemnified Party will retain the right to employ separate counsel and participate in the defense at its own expense; provided the indemnifying Party shall control the defense.

7. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A BREACH OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 3 (LICENSE GRANT) OR A PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8.1 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION REGARDLESS WHETHER ARISING UNDER CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR DAMAGES UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE AMOUNT OF PAYMENTS ACTUALLY PAID BY CUSTOMER TO LICENSOR HEREUNDER FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE ALLEGED BREACH. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY HEREIN.

SPECIAL NOTICE REGARDING CLASS ACTIONS. WHERE PERMITTED UNDER APPLICABLE LAW, CUSTOMER AND LICENSOR AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and Licensor mutually agree otherwise, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. IF CUSTOMER DOES NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THIS AGREEMENT, OR DOES NOT HAVE THE AUTHORITY TO BIND THE ENTITY CUSTOMER REPRESENTS, CUSTOMER SHALL NOT ACCESS OR USE ANY LICENSOR-OFFERED SERVICE.

8. GENERAL.

8.1 Confidentiality.

(a) Protection of Confidential Information. “Confidential Information” means all information regarding a Party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential includes information derived from or concerning the Service, the Licensor’s systems, as well as Licensor’s documentation and the terms of this Agreement. Each receiving Party will retain the disclosing Party’s Confidential Information in the strictest confidence and will not disclose such Confidential Information to any person, third party, contractor, agent, assign, company, machine, or other person or entity without the other Party’s prior express written consent. Notwithstanding the foregoing, each receiving Party may disclose the disclosing Party’s Confidential Information to: (i) any of its directors, officers and employees, or (ii) to legal counsel, auditors, subcontractors, and any other consultants; provided the recipient(s) (1) has a need to know the information, (2) has been advised of the confidential nature of the information, and (3) is under an obligation of confidentiality that is at least as protective of the disclosing Party as the confidentiality obligations contained herein and an obligation to use the information solely to assist the Party it represents in performing its obligations under or realizing the benefits contemplated for such Party under this Agreement. Furthermore, neither receiving Party is liable for disclosing any information to the extent it was: (a) public knowledge at the time of disclosure or thereafter becomes generally known, other than through an act of negligence by the receiving Party; (b) already known to the other Party before the disclosing Party receives it; (c) demonstrably developed at any time by the receiving Party without any connection to the information received under the Agreement; (d) rightfully obtained by a Party from other unrestricted sources; (e) disclosed with the prior written permission of the disclosing Party; or (f) protected health information or other information subject to obligations pursuant to the BAA referenced in Schedule F, in which case such information is subject to the obligations set forth in Schedule F and not the obligations set forth in Section 8 of the General Terms and Conditions.

(b) Restricted Use. Each Party agrees to:

(i) use Confidential Information only for the purposes of this Agreement and as expressly permitted by this Agreement;

(ii) not make copies of or store Confidential Information or any part thereof except as expressly permitted by this Agreement; and

(iii) reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices (whether of disclosing Party or a third party) as are contained in or on the original or as the disclosing Party may otherwise reasonably request.

(c) Required Disclosure. Nothing in this Agreement will prohibit either Party from disclosing Confidential Information if legally required to do so by law, judicial or governmental order, provided the disclosing Party will give the other Party prompt notice of such requirement prior to disclosure and cooperate with the other Party if the other Party elects to contest such disclosure or seek a protective order at the other Party’s sole expense with respect thereto.

8.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing to the address set forth at the beginning of this Agreement and must be: (a) delivered in person; or (b) sent by first-class registered mail, or air mail, as appropriate; or (c) sent by overnight air courier, in each case delivery costs prepaid and properly posted to the address indicated on the first page of this Agreement. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one (1) business day after delivery to an overnight air courier service. In addition to the notice set forth in this paragraph, a mandatory courtesy copy shall also be sent OGC@Omnicell.com and such email does not take the place of the notice required above.
8.3 Assignment. Customer will not effect, or attempt to effect, any assignment (by operation of law or otherwise), sale, transfer, sublease, or sublicense of this Agreement or, any component thereof, without Licensor’s prior written consent, which consent will not be unreasonably withheld; provided, however, Licensor may withhold its consent to a proposed assignment, in its sole discretion, if such assignment is to an Licensor competitor. Any assignment or attempted assignment in violation of the foregoing shall be null and void.

8.4 Independent Contractors. The Parties are and will remain independent contractors under this Agreement. Nothing contained in this Agreement will be construed or implied to the contrary.

8.5 No Intended Third-Party Beneficiaries. Nothing in this Agreement will confer upon any person other than the Parties and their respective successors or assigns any rights, remedies, obligations or liabilities whatsoever.

8.6 No Waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement will not be deemed to be a waiver of the right of either Party thereafter to enforce any such provisions. No waiver, amendment, or variation to this Agreement will be valid unless in writing and signed by both Parties.

8.7 Force Majeure. Non-performance of either Party will be excused to the extent performance is rendered impossible by strike, fire, war, flood, governmental acts or orders or restrictions, or act of God, or any other reason where failure to perform is beyond the control of the non-performing Party.

8.8 Publicity. The Parties acknowledge they may desire to use one another’s name in press releases, brochures, financial reports and the like. Each Party agrees the other Party may use its name in such a manner after receiving the non-publishing Party’s prior written consent, with such consent not to be unreasonably withheld.

8.9 Export Administration. Customer agrees to comply fully with all relevant regulations of the U.S. Department of Commerce and with the U.S. Export Administration Act to assure any Delivered Products is not exported in violation of United States Law and to comply fully with any other regulations or laws relating to such export or import into another country. Customer will be responsible for any duties, customs charges or other taxes or fees relating to such export.

8.10 Dispute Resolution. Except as provided below, all disputes arising from or relating to this Agreement will be resolved as follows: the senior management of both Parties will promptly meet to attempt to resolve such disputes. If such senior management cannot resolve the dispute within two (2) business days (or other mutually acceptable time frame), either Party may make a written demand for formal dispute resolution and specify therein the scope of the dispute. Within ten (10) business days after such written notification, the Parties agree to meet for one (1) day with an impartial mediator (mutually and reasonably agreeable by the Parties) and consider in good faith dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within twenty (20) business days after the written demand for formal dispute resolution, either Party may begin litigation proceedings. This provision will not preclude either Party from seeking equitable relief to protect its interests, including seeking preliminary and permanent injunctive relief, as well as money damages, in any dispute involving its Confidential Information or Intellectual Property Rights.

8.11 Governing Law. This Agreement will be governed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. To the extent permissible by law, the Uniform Computer Information Transaction Act will also not apply to this Agreement.

8.12 Severability. If any provision of this Agreement is for any reason held to be unenforceable, null, void or otherwise ineffective or invalid by a court of competent jurisdiction, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

8.13 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. If this Agreement or an applicable Pricing Supplement is executed in counterparts, no signatory will be bound until both parties named therein have duly executed or caused to be duly executed a counterpart. Executed copies may be delivered through facsimile transmission and a facsimile copy will be accepted as an original.

8.14 Entire Agreement. This is an integrated Agreement and all attachments, exhibits, and schedules agreed to by the Parties are incorporated herein by reference, (a) are an integral part of the Agreement, (b) will be read and interpreted together with the General Terms and Conditions as a single document, (c) constitute the entire, final, complete and exclusive agreement between the Parties, and (d) supersede all previous and contemporaneous agreements, intentions, negotiations, discussions or understandings, oral or written, relating to this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party. Both Parties acknowledge having read the terms and conditions set forth in this Agreement and all attachments, exhibits and schedules hereto, understand all terms and conditions, and agree to be bound thereby.

8.15 Adherence to Privacy Notice Requirements. Customer does and shall ensure that Customer’s notices of privacy practices, to the extent of any, permit Customer or their business associate, at the direction of Customer, to engage in communications with individuals, or patients, as applicable based on Customer’s right of access to Licensed Technology as set forth in the Pricing Supplement and this Agreement.

9. DEFINITIONS. Capitalized terms used in this Agreement have the meanings set forth below or as otherwise defined in the applicable section of the Agreement.

9.1 “Authorized Customer Location” means any Customer facility permitted to utilize the Delivered Products subject to this Agreement.

9.2 “Authorized User” means an employee or independent contractor of Customer lawfully accessing the Licensed Software pursuant to this Agreement and applicable Pricing Supplement(s).

9.3 “Confidential Information” means as it is defined in Section 8.1.

9.4 “Delivered Product” means as it is defined in Section 2.4.

9.5 “Documentation” means help files and/or instruction manuals regarding the use of the Delivered Products and/or Services generally made available by Licensor to its customers.

9.6 “Functional Specifications” means the operational specifications of the Licensed Software or Delivered Product as found within the Documentation or other documents provided with or for the Delivered Products. Functional Specifications may be modified from time to time in Licensor’s sole discretion.

9.7 “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, moral rights, design rights, mask works (if any), whether registered or unregistered, and including any application for registration of any of the foregoing and all rights or forms of protection of a similar nature of having equivalent or similar effect to any of these, and any other similar rights recognized under the laws of any jurisdiction whatsoever or any international conventions or treaties which may subsist anywhere in the world.

9.8 “Pricing Supplement” means Licensor’s standard form for ordering Delivered Products, including Licensed Software or related hardware, Services, and applicable fees. Each Pricing Supplement will be governed by the terms of this Agreement to the extent not otherwise in conflict with the terms of the Pricing Supplement.

9.9 “Licensed Software” means software in machine executable object code form including interfaces, and software that is offered as part of any Licensor-hosted solution as well as such hosted solution, and Documentation, as well as inherent underlying intellectual property, Intellectual Property Rights, enhancements, updates, or improvements to any and all of the foregoing, licensed to Customer if any, and (b) Updates and Upgrades to Licensed Software.

9.10 “Services” means work performed by Licensor for Customer pursuant to a Pricing Supplement agreed to by the Parties in writing, under this Agreement. The schedule for Services will be agreed upon by the Parties, subject to availability of Licensor personnel.

9.11 “Scheduled Payments” means all payments set forth on the applicable Pricing Supplement, including any Services fees, Support Services, fees and Licensed Software fees, as applicable.

9.12 “Update” means a version of the Licensed Software containing error corrections or bug fixes but does not generally include functional enhancements.

9.13 “Upgrade” means a version of the Licensed Software containing functional enhancements, modifications or extensions. An upgrade does not include hardware changes needed to accommodate new releases, nor does it include options or new products for which Licensor charges customers additional fees.  

SCHEDULE A
(RESERVED)

SCHEDULE B
(RESERVED)

SCHEDULE C
(RESERVED)

SCHEDULE D

SUPPORT SERVICES

The terms contained in this Schedule D, together with the terms contained in the General Terms and Conditions, will govern the provision of Support Services by Licensor to Customer for Delivered Products, the specific components of which are set forth herein and as identified in the Support Services Matrix for the applicable level of Support Services purchased by Customer for a particular Delivered Product as identified on the applicable Pricing Supplement. In the event of a conflict between this Schedule D and the General Terms and Conditions, the terms in this Schedule D will take precedence.

1. OVERVIEW OF SUPPORT.

1.1 Team. Licensor shall maintain an organization with staff having the technical expertise, training and/or experience, during Normal Business Hours to perform the Support Services.

1.2 Subcontractors. Licensor may subcontract the Support Services or any other obligation under this Agreement (or any part thereof) without the prior written consent of Customer. Licensor remains responsible for such subcontractors’ and third parties’ compliance with and breach of the terms of this Agreement and its Schedules.

1.3 Problems. Licensor will provide Support Services to Customer for any Problems that may arise from Customer’s use of the Delivered Products, as described in this Schedule.

1.4 Remote Support Services. Licensor’s Support Services covered by this Schedule include the fielding of questions, analyzing and diagnosing Problems, and providing corrections when issues are found. Customer is responsible for recreating the problem and providing the necessary information to Licensor on each Problem as defined in Section 2.3 (Required Information). It is Licensor’s responsibility to coordinate the resolution of Problems including the verification of any reported Problem, to communicate with the Customer for additional information, and to supply the Problem correction and / or update as necessary. If applicable, and a new executable is generated, the Customer is responsible for installation unless otherwise agreed upon by Licensor.

1.5 Limitations. The Delivered Products may from time-to-time, or in certain configurations, be distributed by Licensor with certain third-party software embedded into or included with the Software. Support Services apply to Delivered Products and any such third-party software incorporated therein. With respect to any Severity 1 or 2 Problems in the third-party software, Licensor will use commercially reasonable efforts to work with Customer and the appropriate third party to resolve such Problems. The terms and conditions in this Schedule cover all Support Services, including, Licensor’s assistance with installation, training or any consulting services where applicable. Support Services cover only Delivered Products and any Licensor-provided hardware set forth in a Pricing Supplement subject to this Agreement.

1.6 Non-Standard Support. With respect to Support Services not specified herein, or are excluded pursuant to Section 1.7 (Specific Exclusions), or are due to misapplication, abuse, misuse, alteration or unauthorized repair or installation of the Delivered Products, lack of clean commercial power or environmental conditions causing malfunctions, including power surges, or support of products not manufactured by Licensor (“Non-Standard Support”), Licensor will charge Customer for such Non-Standard Support at Licensor’s then-current rates plus the list price for any replacement parts, if any. In addition, Customer will reimburse Licensor for all related reasonable travel expenses and costs for board and lodging related to on-site Non-Standard Support. Where Support Services can be provided remotely, but Customer does not permit Licensor to access the Delivered Products remotely, Licensor reserves the right to designate support for any such Delivered Products as Non-Standard Support hereunder.

1.7 Specific Exclusions. Support Services under an applicable Support Service Plan do not include those services requested as a result of causes or errors not attributable to Licensor, or are not reproducible. If Customer requests Licensor to provide, and Licensor does so provide, any services in connection with causes or errors not attributable to Licensor, or are not reproducible, such support will be subject to the Non-Standard Support terms in Section 1.6 (Non-Standard Support). Causes or errors are not attributable to Licensor include the following:

(a) negligent use, Force Majeure or causes other than through ordinary use by Customer;

(b) use of the Delivered Products not in accordance with the Documentation, or on or with hardware, software or other equipment deviates from Licensor or manufacturer operating specifications;

(c) attempted modification or addition to the Delivered Products undertaken by any party other than Licensor;

(d) Customer/third party products and/or software not supplied by Licensor;

(e) Customer's failure to implement a supported version of the Delivered Products is issued under this Schedule;

(f) additional, modified or replacement interfaces not included in the initial installation (which may include but are not limited to) (i) change in record format; (ii) change in communications mechanism; (iii) addition of new record types; and/or, (iv) addition of new processing functionality. Replacement interfaces will include any replacement to an existing interface between the Delivered Products and Customer’s PMS; or

(g) Failure by Customer to respond to any action plans provided by Licensor pursuant to a Customer Support Call.

1.8 Customer Provided Products. Licensor recommends Customer only install Licensor-supplied integrated hardware and software platforms for optimum performance, reliability and serviceability. Should Customer decide to install its own computing platforms, Licensor may provide a special “customer provided server” option which covers software support under this Schedule. Products not manufactured by Licensor and hardware platforms purchased independently by the Customer are not the responsibility of Licensor and will not be covered under this Schedule. Any computing hardware provided by Customer must meet the hardware specifications set forth by Licensor and Customer must be capable of supporting such hardware. Notwithstanding the above, if Customer so chooses, in lieu of Licensor supplied computing hardware, virtual environments whose resources are provisioned by Customer and meet the required applicable technical specifications and documentation of Licensor are also deemed sufficient for optimal performance, reliability and serviceability of the Delivered Products.

1.9 Escalation. Customer and Licensor will mutually determine an escalation procedure to handle Problems.

1.10 Support Services Coverage.

(a) Telephone Support Services: Licensor will provide telephone access to Customer during Licensor’s Normal Business Hours. Telephone access will be provided via a toll-free number to be provided by Licensor. Licensor shall coordinate the resolution of Problems, including the verification of any reported Problem, to communicate with Customer for additional information and to supply the Problem correction and/or update as necessary. Any Support initiated prior to the end of the Normal Business Hours will not be stopped or charged at a higher rate solely as a result of the time of Support Services exceeding the Normal Business Hours timeframe.
(b) E-mail Support Services. Customer may submit a Problem request via e-mail by directing its query to an e-mail address provided by Licensor.

(c) Chat Support Services – Customer may submit a Problem request via chat by directing its query to an online chatbot for applicable products.

1.11 Support Services Fees. Support Services fees are outlined below:

(a) The Support Services defined in this Agreement will be provided as specified in the applicable Pricing Supplement.

(b) After-hours, remote installation, and on-site installation Support Services will be provided on an as-needed basis and will be billed as incurred at Licensor’s then-current rate.

(c) Additional Support Services and or enhancements may be requested by Customer, such as on-site support, training, testing or consulting services, and shall be provided under a Pricing Supplement at Licensor’s then-current rate plus expenses. Customer is responsible for coordinating the schedule in advance with Licensor.

2. PROBLEM REPORTING

2.1 Reporting. Customer will document and promptly report all Problems to Licensor. Licensor will provide Customer with a service ticket number to track the status of each Problem. Customer will take all steps necessary to carry out any procedures Licensor may give for the rectification of Problems within a reasonable time after such procedures have been provided. Licensor reserves the right to close the service ticket without further responsibility or liability if Customer does not provide appropriate feedback to Licensor within thirty (30) days of receiving new Delivered Products or a workaround for a problem, or if Customer otherwise fails to respond to a request for additional information.

2.2 Authorized Contacts. All Support Services inquiries and Problem reports must be made by authorized Customer personnel. Customer may report a Problem via telephone, e-mail or chat, where available. Licensor shall maintain a telephone number and e-mail address for Customer to communicate during Normal Business Hours to report a Problem and receive Support Services.

2.3 Required Information. Unless otherwise agreed to by the Parties with respect to a specific Problem, all inquiries made to Licensor shall include the following information:

(a) Customer name and Licensor Customer Number.

(b) Licensed Software subject to the Problem.

(c) An accurate description of the Problem, including date and time of occurrence.

(d) A reproducible test case demonstrating the Problem (where applicable).

(e) Problem, trace, and system files (where applicable).

(f) Exact wording of all Error messages related to the Problem.

(g) A full description of expected Problem resolution.

(h) Any special circumstances surrounding the discovery of the Problem.

2.4 Definitions of Technical Support Problem Severities. Licensor will assign the appropriate Severity level to all reported Problems. Severity levels are assigned to allow prioritization of incoming Problems. Severity levels defined below are assigned to Problem conditions as a result of a Customer reported Problem and are used to schedule the appropriate engineering response, if needed, in terms of work around, and permanent correction timeframes. The criteria for assigning a particular Severity level are set forth in the Support Services Matrix at the end of this Schedule.

2.5 Response Time. For each Problem reported by Customer, Licensor undertakes to confirm receipt of and acknowledge the reported Problem within the following Response Times set forth in the Support Services Matrix.

2.6 Customer’s Obligations. Before reporting a Problem to Licensor, Customer shall (a) obtain all information necessary in accordance with the necessary information outlined above in Section 2.3 (Required Information) and (b) include the identifying case number in any ongoing communications with Licensor on an existing Problem.

(a) Procedures. Customer will train its personnel in the proper use of the Delivered Products. Customer will maintain a current back-up copy of the Delivered Products and a list of all programs, data and licenses required for the performance of Support Services, including implementing back-up procedures if an error or malfunction in the Delivered Products or hardware on which the Delivered Products is loaded or operating. Unless required to be returned in accordance with Licensor’s RMA Policy, Customer is responsible for properly and safely disposing all disposable items related to or in use with the Delivered Products, including but not limited to expired batteries for applicable Delivered Products.

(b) Access. Customer is required to provide Licensor with access to Customer's personnel and equipment during Normal Business Hours to facilitate Support Services requests. Customer acknowledges dial-in and/or remote access will speed up resolution of support issues.

(c) Third Party Agents. If Customer utilizes third party support services or products to support the Delivered Products, Customer will ensure such third-party support is at a similar or higher level of support as Customer would otherwise have secured with Licensor. Customer acknowledges and agrees Licensor will not be held responsible for delayed Response Times and Support Services should information from third party support be unavailable or delayed.

(d) Customer Contacts. Customer will appoint one or more qualified and trained resource who is knowledgeable in the operation of the Delivered Products to serve as primary Customer contacts with Licensor for Support Calls. Customer agrees all Support Calls will be initiated through such trained resource.

3. PROBLEM RESOLUTION

3.1 Correction. Licensor will use commercially reasonable efforts to correct Problems in the Licensed Software subject to a valid and current Pricing Supplement for Support Services.

3.2 Communication. Licensor will use its commercially reasonable efforts to continue communication with Customer about reported Problems so long as the Problem remains open. Communications may be made via telephone or e-mail.

3.3 Resolution Process. Licensor will use its commercially reasonable efforts to resolve each Severity 1, 2 or 3 Problem by providing a reasonable workaround, an object code patch or a specific action plan for how Licensor will address the Problem and an estimate of how long it will take to rectify the Problem.

3.4 Assignment of Resources. All Problems will have the necessary programming resources assigned based on the specified Severity, balanced with other problems with the same Severity.

3.5 Response Time Goals. For each Problem reported by Customer, Licensor shall use its reasonable commercial efforts to resolve the Problem in accordance with the Support Services Matrix.

4. DEFINITIONS.

4.1 “Critical Situation” means a Problem reported by Customer to Licensor, which has been prioritized at Severity 1 (High).

4.2 “Problem” means a single support question resulting from a failure or a behavior of the Software, which deviates from Software specifications and documentation.

4.3 “Normal Business Hours” for the United States are defined as follows:

(a) Monday through Friday (Weekends are not covered)

(b) Coverage hours vary by product and are found at https://enlivenhealth.co/support, excluding Licensor’s observed holidays.

4.4 “Response Time” is the amount of time it takes Licensor to confirm receipt of a report of a Problem from Customer. All Response Times in the Support Services Matrix below are subject to Normal Business Hours.

4.5 “Support Call” means a call by Customer seeking Support Services pursuant to this Agreement.

4.6 “Support Services” means the support as set forth in this Agreement.

SAAS SUPPORT SERVICES MATRIX EnlivenHealth-FDSAmplicareProblem SeverityConditionsResponse TimeSEV 1 - (P1 High)Critical business impact. Customer has a complete loss of Service, and Service cannot reasonably be provided, or the Customer experiences real or perceived data loss or corruption or an essential part of the Licensed Software is unusable for the Customer. A Severity 1 will be assigned to a Problem that results in the inability to use a mission-critical application.2 HoursSEV 2 - (P2 Medium)Some business impact. The Problem: (1) seriously affects the non-critical functionality of the Licensed Software, but the Problem can be circumvented so that the Licensed Software can be used; or (2) the Licensed Software and its functions generally remain unaffected, but a certain non-critical function sporadically gives incorrect results or does not conform to the Licensed Software user manual.4 HoursSEV 3 - (P3 Low)No material business impact. A situation has no operational impact on the Customer and does not require a fix or correction to the Licensed Software. This is generally a minor condition that can be easily avoided or circumvented by the Customer. This minor condition may be an enhancement that can be addressed based on need and prioritized within the scope of currently scheduled development efforts.1 Business DaySEV 4 - (P4 Informational)Licensed Software usage questions. – User needs assistance or training to properly use the functioning Licensed Software.2 Business Day

SCHEDULE E

TAX

The tax form needs to be downloaded and returned if Customer is claiming a tax exemption, form can be found at https://enlivenhealth.link/tax-form.

SCHEDULE F
BUSINESS ASSOCIATE SCHEDULE

The business associate agreement located at (“BAA”) will apply to this Agreement.

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