Individual

PHYSICIAN CODING SERVICES, LLC
MASTER SUBSCRIPTION AGREEMENT

By checking the box “Accept the Master Subscription Agreement”, you are indicating your confirmation of reading and acceptance of the terms and conditions of this Agreement, the PCS website or mobile application, as the case may be, Terms of Use and Privacy Policy (“Terms of Use” found here: www.mdcodepro.com/terms), and this shall represent your digital signature of this Agreement binding you to the terms and conditions therein. Please print this Agreement and the Terms of Use, and store it in a safe and secure place.

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS ANY AND ALL ACCESS AND USE OF PHYSICIAN CODING SERVICES, LLC (“PCS”) MDCODEPROTM VIDEO TRAINING CONTENT (“CONTENT”) AND THE MDCODEPROTM CODE GENERATOR SOFTWARE APPLICATION (“SOFTWARE”), AND LIMITED CONSULTING FOR CODING PATIENT VISITS (“CONSULTING,” COLLECTIVELY WITH THE CONTENT AND SOFTWARE, THE “SERVICES”) EITHER VIA THIS WEBSITE, ANY OTHER SOFTWARE INTERFACE, APPLICATION OR APP, OR OTHER MEANS BY SUBSCRIBER OR ITS AUTHORIZED USERS, IN CONSIDERATION FOR A SUBSCRIPTION FEE.

IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS TO HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR IF SUCH INDIVIDUAL DOES NOT AGREE TO THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement is effective between Subscriber and PCS as of the date of Subscriber’s checking the box to “Accept the Master Subscription Agreement” (“Effective Date”). Subscriber will be bound by any further updated revisions of this Agreement. PCS will use commercially reasonable efforts to provide reasonable notice to Subscriber of material updated revisions.

If a provision in an order form (such as at, www.mdcodepro.com) or other similar written ordering document or agreement (“Order”) conflicts with a provision in this Agreement, the provisions of this Agreement will control and prevail unless the Order specifically states that the term in the Order will control.

1. SUBSCRIPTION AND SERVICES.

1.1 Subscription. Subject to and in accordance with the terms of this Agreement, PCS grants to Subscriber and Subscriber accepts a nonexclusive and nontransferable limited license for each specifically identified individual (a) who is an employee of Subscriber, or (b) who is engaged by Subscriber as an independent contractor, or (c) who is the Subscriber, only in the event of a solo practitioner, that agrees to be bound by the Terms of Use (collectively, “Authorized Users”) and to access and use the Services solely for Subscriber’s or Authorized User’s own internal business purposes (the “Subscription”). Each subscription period is for one (1) consecutive twelve-month time-period. Subscriber will at no time obtain possession nor ownership interest in the Services. Subscriber grants to PCS a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or its Authorized Users, relating to the Services.

1.2 Use Restrictions.

(a) Subscriber will not, or allow Authorized Users to, transmit through the Services any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise reasonably objectionable material of any kind.

(b) Subscriber agrees to access and use the Services solely for purposes expressly authorized herein and in compliance with all applicable laws, including without limitation, copyright, trademark, obscenity and defamation laws. Subscriber will not, directly or indirectly: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Subscription, the Services, or any content thereof; (ii) access or use the Services to provide services to or for any party other than Subscriber and Authorized Users; (iii) modify or make derivative works based upon the Services, content or any part thereof; (iv) create Internet “links” to the Services or “frame” or “mirror” any content thereof on any other server or wireless or Internet-based device; (v) distribute, transfer or resell the results of Subscriber’s or any Authorized User’s use of the Services; (vi) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services; (vii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (viii) send or store materials that are obscene, threatening, libelous, infringing of third party property rights, or otherwise unlawful, including material harmful to children or violative of third party privacy rights; (ix) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (x) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (xi) attempt to gain unauthorized access to the Services or their related systems or networks.

(c) Subscriber shall indemnify, defend, and hold PCS harmless against any loss, damage, costs, fees (including reasonable attorney’s fees), and expenses incurred by and/or awarded against PCS arising in whole or in part from (i) Subscriber’s or any Authorized User’s use of the Services, (ii) a breach by Subscriber of its obligations under this Agreement, and (iii) Subscriber’s or any Authorized User’s use of the Services in an unlawful manner or in any manner inconsistent with the restrictions and permitted uses stated in this Agreement.

1.3 Use of Subscriber Data. PCS shall have no right or license hereunder to any data, information, files, text, or other content that Subscriber or its Authorized Users input to the Software or provide to PCS, and any output that Subscriber or its Authorized Users generate using the Software or that is provided by PCS in response to Subscriber or Authorized User inquiry or request (“Subscriber Data”), except for a royalty-free, nonexclusive, and nontransferable license during the term of this Agreement for PCS, and any third party provider of hosting services used by PCS (“Hosting Provider”), to perform the obligations of PCS under this Agreement, including without limitation to provide access to the Services for Subscriber and Authorized Users to transmit Subscriber Data to and from the Software in accordance with the terms of this Agreement.

2. SERVICES AVAILABILITY; ACCESS; SUPPORT.

2.1 Availability. PCS will host the then-supported current version of the Services either independently or through a Hosting Provider. Commencing with the Effective Date, PCS will use commercially reasonable efforts to maintain proper operation of the Services in a PCS-controlled hosting environment and accessible by Subscriber’s Authorized Users for use in accordance with the terms hereof. PCS shall not be in breach of the foregoing obligation to the extent the inability of Authorized Users to access and use the Services as permitted hereunder is attributable to (i) causes other than computers, programs or operators of PCS or a Hosting Provider, (ii) Scheduled Maintenance (as defined herein), (iii) failure or malfunction of telecommunication lines, (iv) failure or malfunction of Subscriber or Authorized User equipment or systems, (v) Force Majeure Events (as defined herein), or (vi) Permitted Downtime (as defined herein). For purposes of Permitted Downtime, references in this Section 2.1 to PCS shall be deemed to include any Hosting Provider used by PCS. Scheduled maintenance shall include the following: (a) technical updates to servers and supporting software used to host the Content, Software and Services; (b) extended downtime for clean-up and maintenance of systems as periodically required for data and transactions, infrastructure maintenance, and updates to Software and Content; (c) periods of production testing prior to scheduling updates to the Content or Software; (d) emergency maintenance to remedy unforeseen problems with the Content or Software, and servers and supporting software used to host the Content or Software; (e) Software updates for Medicare and Medicaid coding and policy changes and corrections; (f) Software updates for new functionality; and (g) Software patches designed to maintain functionality of the Software in accordance with the Documentation (collectively, “Scheduled Maintenance”). The inability of Subscriber or its Authorized Users to access and use the Services attributable to any of the following shall be deemed to be “Permitted Downtime”: (a) periods of Scheduled Maintenance ; (b) any Force Majeure Event; (c) failure of the server or other computer hardware used to host the Software; (d) bugs, errors or other software problems of PCS’ Hosting Provider used to provide the Services; (e) negligent or willful conduct by Subscriber and/or Authorized Users in using the Content, Software or Services in a manner not authorized by this Agreement; (f) security breaches involving Subscriber’s systems, equipment or CTM, or use of compromised Login Credentials; (g) restrictions in capacity or bandwidth or failure or interruption of access to the Services attributable to Subscriber’s Internet service provider or other CTM used to access the Services; (h) failure or interruption of Subscriber hardware, software, or network connections; (i) errors in content or format and viruses or other corruption in Subscriber Data; (j) increases in Subscriber use of the Services resulting from application transaction volumes exceeding twenty-five (25%) percent of the prior month’s average transaction volume, which are not associated with an increase in Subscriber’s Authorized User counts; (k) errors or malfunctions in Subscriber technologies or services, or third party software (other than software of PCS or its Hosting Provider used to provide the Services), or delays or unavailability of services provided by third parties that impact system availability, including any downtime while waiting for issue resolution by such third parties.

2.2 Access. Authorized Users will access and use the Services solely through the PCS website located at www.mdcodepro.com or the MDCodeProTM app available at the Apple App Store or the Google Play mobile app store (“Connection Transfer Method” or “CTM”). Subscriber is solely responsible for monitoring, maintenance, support, availability and performance of Subscriber’s computer and communications systems used to access and use the Services, including hardware, software, CTMs, local area networks, wide area networks, and other computer equipment and software needed to access and use the Services, and PCS shall have not responsibility for same.

2.3 Support. PCS will provide support to Subscriber and Authorized Users with respect to use of the Services by a fillable form on its web-page located at http://mdcodepro.com/support/. PCS will make commercially reasonable efforts to respond to support requests within one business day. Support covers investigating possible defects in the Services, providing work-arounds to defects, and providing brief answers about Services functionality.

3. AUTHORIZED USERS.

3.1 PCS will provide Subscriber with a single administrator user account for secure administrator access and the necessary instructions for Subscriber’s administrator to create and identify Authorized Users who will access the Services. Only Authorized Users may use administrator-issued identification, passwords and other credentials (“Login Credentials”) to access the Services. Authorized User Login Credentials cannot be shared or used by more than one (1) individual Authorized User but may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who have terminated employment or otherwise changed job status or function and no longer use the Services. Administrator is responsible for all activities that occur under such single administrator user account regardless of whether the activities are undertaken by Subscriber’s administrator, other Subscriber employees, or contractors who work for Subscriber. PCS is not responsible for unauthorized access to Subscriber’s user account.

3.2 Upon written request from PCS, Subscriber shall provide to PCS a written report listing the names of all Authorized Users and other persons who accessed and used the Service or the Software through Subscriber (collectively, “Users”), and upon reasonable written notice shall permit PCS to audit and review Subscriber’s administrator user account records and computer media to verify such reports. Subscriber is responsible for access to and use of the Services by all Users and shall remain liable to PCS for any breach of the terms hereof by any User as if such breach was committed by Subscriber. Subscriber is responsible for all activity using the Services occurring under Subscriber’s user account, and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Subscriber shall: (i) notify PCS immediately of any unauthorized use of any Login Credentials or account or any other known or suspected breach of security; (ii) report to PCS immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by Subscriber; and (iii) not impersonate another subscriber or authorized user of the Services, or provide false identity information to gain access to or use of the Services.

3.3 The Subscription authorizes Subscriber to permit access to and use of the Services only by Authorized Users. The right of Authorized Users to access and use the Services shall terminate immediately upon termination or expiration of this Agreement. Subscriber shall inform all Authorized Users in writing of the terms of this Agreement relating to restrictions of use, confidentiality, warranty and liability disclaimers, and intellectual property rights of PCS, and shall prohibit access to and use of the Services by any Authorized User who does not consent to such terms in an electronic click-through Terms of Use. Subscriber shall indemnify and hold harmless PCS from and against any damage, loss, or claim of any person relating to or arising out of the failure of Subscriber to perform any of the foregoing obligations.

4. SUBSCRIBER RESPONSIBILITIES.

4.1 Subscriber shall be solely responsible for the following actions and decisions for access to and use of the Services: (i) administer Login Credentials and other industry-standard security protocols for Authorized Users to access the Services; (ii) provide and maintain computers and network access within Subscriber’s computer system for Authorized Users to access the Services; (iii) provide accurate Subscriber Data in the manner reasonably prescribed by PCS in the specifications that are part of the Software and describe the functionality, permitted use, and user instructions therefor (“Documentation”) or otherwise requested or instructed by PCS; (iv) provide prompt notice to PCS of any changes to Subscriber’s operations, Authorized Users, Subscriber primary contact, or other information that would require a change in Fees and PCS support, operation, or configuration of the Services; and (v) selection, accuracy, integrity, reliability, quality, legality, and use of Subscriber Data. PCS shall not be responsible for the reliability or continued availability of the communications lines or the corresponding security configurations that Subscriber uses to access the CTM used to access the Services. PCS shall have no responsibility for or liability arising from the selection, accuracy, integrity, reliability, quality, legality, and use of Subscriber Data with the Services. Subscriber acknowledges and agrees that the Services will not store or archive Subscriber Data. Subscriber Data related to a specifically identified request to PCS for feedback regarding the particular coding based upon Subscriber input via chat or similar functionality (“Case”) may be stored indefinitely unless over-written, deleted or archived, at PCS’ sole discretion.

4.2 Subscriber acknowledges and agrees that this Agreement and the Subscription shall not convey or vest in Subscriber any ownership, title, or intellectual property rights in and to the Content, Software, Documentation, or Services, and that PCS shall be the sole owner of any modifications, alterations, changes, revisions, or corrections thereto, whether or not permitted hereunder. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, DELIVERY FAILURES, AND OTHER PROBLEMS INHERENT IN CTM, ELECTRONIC COMMUNICATIONS, AND INTEROPERABILITY WITH THE COMPUTER SYSTEMS AND APPLICATIONS USED BY SUBSCRIBER AND AUTHORIZED USERS. PCS IS NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY ARISING FROM ANY SUCH LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER PROBLEMS.

4.3 Subscriber acknowledges and agrees that under no circumstances will it disclose to PCS any personally identifiable information, Subscriber identifiable information, Authorized User identifiable information, or individually identifiable health information, including protected health information (“PHI”), as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and their implementing regulations set forth at 45 C.F.R. Parts 160 and Part 164 (collectively, the “HIPAA Rules”). Any disclosure of PHI in violation of the foregoing shall be the sole and exclusive responsibility, obligation and liability of Subscriber, including without limitation compliances with any applicable state or federal privacy or breach notification laws.

5. FEES AND PAYMENT.

5.1 Fees. Subscriber shall pay all fees in accordance with the provisions of the applicable Order (“Fees”). All Fees payments are non-refundable regardless of any circumstance, or expiration or termination of this Agreement. Fees are billed on an annual basis and allow access to the services for a one-year period.

6. TERM AND TERMINATION.

6.1 Term. The term of this Agreement will commence as of the Effective Date and shall continue in effect for so long as Subscriber timely pays the Fees, unless sooner terminated in accordance with Section 6.2.

6.2 Termination. Notwithstanding Section 6.1, either Subscriber or PCS may terminate this Agreement for cause if the other Party (a) commits a material breach of this Agreement, the non-breaching Party gives written notice of the breach, and the breach is not remedied to the reasonable satisfaction of the non-breaching Party within thirty (30) days, or, in the case of a failure to pay fees in a timely manner by Subscriber, five (5) days after notice of same to the other Party, or (b) becomes the subject of an involuntary bankruptcy petition which is not dismissed within sixty (60) days, makes a general assignment for the benefit of creditors, has a receiver or equivalent appointed for its assets, or ceases to conduct business. This Agreement will immediately terminate if Subscriber fails to accept any updated revisions of this Agreement or fails to timely pay the Fees.

6.3 Effect of Termination.

(a) If this Agreement expires or is terminated pursuant to Section 6.2 hereof, (i) access to the Services by Subscriber and Authorized Users shall be terminated, in which case PCS may invalidate the Login Credentials and otherwise deny access to the Services, (ii) all unpaid amounts owed to PCS or Fees accrued for the Subscription or Services shall become due and payable on the effective date of such termination, which both Parties acknowledge represents a reasonable estimate of PCS’ damages in the event of such early termination, (iii) the Subscription and any and all rights or other licenses granted to Subscriber by PCS under this Agreement shall immediately terminate, and (iv) there will be no refund of any Fees paid.

(b) Upon termination of this Agreement:

(i) Subscriber will: (1) return to PCS via certified mail, all copies of the Documentation and PCS CI (as defined herein) that Subscriber maintains in tangible form; or if such action is infeasible, (2) provide written notice to PCS certifying that Subscriber has deleted all copies of such information from all computer servers, computer terminals, and electronic storage devices of Subscriber, Authorized Users, and any other party acting on its or their behalf; and (3) adhere to such terms of this Agreement which by the subject matter thereof are intended to survive termination.

(ii) PCS will: (1) return to Subscriber via certified mail, all copies of the Subscriber CI (as defined herein) that PCS maintains in tangible form; or if such action is infeasible, (2) provide written notice to Subscriber certifying that PCS has deleted all copies of such information from all computer servers, computer terminals, and electronic storage devices of PCS and any other party acting on its or their behalf.

6.4 Dispute Resolution. All disputes arising under or in connection with this Agreement shall initially be referred to the representatives of each Party who customarily manages the relationship between the Parties. If such representatives do not resolve the dispute within ten (10) business days after such referral, a senior executive officer of each Party shall confer and attempt in good faith to resolve the dispute within ten (10) business days after such referral. Except to the extent necessary to prevent a threatened disclosure or unauthorized use of a Party’s CI, neither Party shall commence legal proceedings with regard to a dispute until completion of the notice and cure period set forth in Section 6.2, and the dispute resolution procedures set forth in this Section 6.4.

7. SUBSCRIBER PRIMARY CONTACT.

Subscriber will identify, and name, an appropriate individual, with corresponding contact information, including electronic mail address, in the Order, as the primary contact with whom PCS should communicate matters regarding the Services, such as maintenance notifications, and other configuration changes. Subscriber can update the primary contact upon reasonable written notice to PCS.

8. INTELLECTUAL PROPERTY RIGHTS.

Subscriber agrees that, as between the Parties, the Services, Content, Software, Documentation, and any other related services are proprietary products and services, and all right, title and interest in and to the Services, Content, Software, Documentation, and related services, including all associated intellectual property rights, are and shall at all times remain with and vested in PCS. The Content and Software contain trade secret and proprietary information owned by PCS and is protected by United States copyright laws and international trade provisions. Subscriber must treat the Services like any other copyrighted material and Subscriber may not copy or distribute the Services, Content, Software, or Documentation electronically or otherwise for any purpose.

9. LIMITED WARRANTY.

PCS represents and warrants that during the Term the Software will materially conform to the functionality set forth in the Documentation. As the sole recourse of Subscriber and the sole liability of PCS for a breach of the foregoing representation and warranty, PCS will take commercially reasonable steps to correct any failure of the Software to so conform, at no additional charge and in a timely manner.

10. DISCLAIMER OF WARRANTIES.

10.1 ANY WRITTEN OR ORAL INFORMATION OR REPRESENTATIONS PROVIDED BY PCS AGENTS, EMPLOYEES, CONSULTANTS OR SERVICE PROVIDERS WITH RESPECT TO THE USE OR OPERATION OF THE SERVICES, WILL IN NO WAY INCREASE THE SCOPE OF PCS’ WARRANTY. SUBSCRIBER AND AUTHORIZED USERS MUST EXERCISE THEIR OWN DUE DILIGENCE BEFORE DISTRIBUTING AND/OR RELYING ON INFORMATION TRANSMITTED TO OR FROM THE SERVICES, AND MUST DETERMINE THAT THEY HAVE ALL NECESSARY RIGHTS TO COPY, USE, PUBLISH, OR OTHERWISE DISTRIBUTE SUCH INFORMATION UNDER COPYRIGHT AND OTHER APPLICABLE LAWS. PCS WILL NOT BE LIABLE FOR ANY CONSEQUENCES OF PROVIDING ACCESS TO AND USE OF THE SERVICES HEREUNDER, INCLUDING THOSE SUFFERED AS A RESULT OF DELIVERING OR ACCESSING INFORMATION OR CONTENT, SUCH AS ACCESSING INFORMATION WITH OFFENSIVE, INACCURATE OR INAPPROPRIATE CONTENT, THE POSSIBILITY OF CONTRACTING COMPUTER VIRUSES, OR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, OR DESTRUCTION OF ANY DATA, FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PCS’ NEGLIGENCE.

10.2 EXCEPT AS SPECIFICALLY DESCRIBED IN SECTION 10.1 HEREOF, THE SERVICES AND DOCUMENTATION FOR WHICH THE SUBSCRIPTION IS GRANTED HEREUNDER IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, RESULTS, AND EFFORT WITH RESPECT TO THE SERVICES AND DOCUMENTATION IS WITH SUBSCRIBER. NEITHER PCS NOR ANY OF ITS AFFILIATES REPRESENT OR WARRANT THAT THE SERVICES AND DOCUMENTATION OR SUBSCRIBER’S ACCESS OR USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. PCS AND HOSTING PROVIDER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICES AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS OWN DETERMINATIONS ON THE PROPER PREPARATION, PROCESSING, AND CODING FOR HEALTH CARE SERVICES AND PRODUCTS, AND APPLICATION OF MEDICARE, MEDICAID, AND OTHER RATES AND POLICY INFORMATION TO SAME.

11. LIMITATION OF LIABILITY.

11.1 SUBSCRIBER ACKNOWLEDGES AND AGREES THAT PCS DISCLAIMS AND WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR CLAIM, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY, ARISING FROM ACCESS TO OR USE OF THE SERVICES BY SUBSCRIBER AND AUTHORIZED USERS, EVEN IF PCS IS ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, OR CLAIM. PCS SHALL HAVE NO LIABILITY OR RESPONSIBILITY IN THE EVENT OF ANY LOSS OR INTERRUPTION IN THE SERVICES DUE TO CAUSES BEYOND ITS REASONABLE CONTROL OR FORESEEABILITY, SUCH AS LOSS, INTERRUPTION OR FAILURE OF CTM, TELECOMMUNICATIONS OR DIGITAL TRANSMISSIONS AND LINKS, INTERNET SLOWDOWN OR FAILURES. PROVIDED HOWEVER, IF THE FOREGOING DISCLAIMER IS DETERMINED NOT TO BE VALID AND ENFORCEABLE IN WHOLE OR IN PART UNDER APPLICABLE LAW, THE LIABILITY OF PCS SHALL BE LIMITED TO TWO-MONTHS OF THE FEES THAT SUBSCRIBER PAID UNDER ARTICLE 5 HEREOF AS OF THE DATE OF SUCH LOSS, DAMAGE, OR CLAIM, FOR THE SOFTWARE GIVING RISE TO SAME.

12. IP INDEMNITY.

12.1 By PCS. PCS will defend Subscriber against any claim that the Services or use of the Services by Subscriber in a manner permitted hereunder directly infringes a United States patent, copyright, or other third party intellectual property right (“IP Claim”), and pay any judgments or settlements with respect thereto, provided that Subscriber: (i) gives PCS prompt written notice as soon as Subscriber becomes aware that an IP Claim has been or may be made; (ii) takes such actions as are necessary for PCS to control the defense and settlement of such IP Claim; and (iii) cooperates fully at the request of PCS in the defense or settlement of the IP Claim, subject to payment by PCS of such costs and expenses as Subscriber reasonably incurs to provide such cooperation.

12.2 Options for IP Claims. If in the opinion of PCS the Service may become the subject of an IP Claim, or at any time during the course of any litigation or proceeding with respect to such claim, PCS at its sole option may: (i) replace the Service with a non- infringing Service; (ii) modify the Service so that it is no longer infringing; (iii) procure for Subscriber the right to continue using the Service; or (iv) terminate this Agreement and refund to Subscriber a portion of the Fees paid, prorated for the time period PCS will not perform under this Agreement.

12.3 Limitation of Liability for IP Claims. PCS shall have no liability for any IP Claim to the extent based, in whole or in part, on (i) access to or use of the Services outside the scope of this Agreement, (ii) combination, operation, or use of the Services with software, hardware, or other materials not furnished by PCS, if such infringement would have been avoided by use of the Services without such software, hardware, or other materials; and (iii) any modification of the Services not made by PCS. This Section 12.3 and Sections 12.1 and 12.2 hereof set forth the sole and exclusive remedies of Subscriber with respect to PCS and the entire obligations and liability of PCS to Subscriber for any IP Claim.

12.4 By Subscriber. Subscriber shall indemnify, defend and hold harmless PCS against any claims (i) resulting from the use of the Services; (ii) that any Subscriber Data infringes or violates any rights of third party, including without limitation, rights of publicity, rights of privacy, intellectual property, trade secrets or licenses; or (iii) arising from or relating to Subscriber’s or its Authorized Users’ failure to comply with this Agreement.

13. CONFIDENTIAL INFORMATION.

13.1 Definition. The term “Confidential Information” (“CI”) shall mean: (i) any and all information which is disclosed by either Party (“Owner”) to the other (“Recipient”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; (ii) the terms of this Agreement, including without limitation, the pricing of the Services, and any proposals or other documents that preceded this Agreement; (iii) the Software and Documentation; (iv) Subscriber Data; and (v) documents, communications, and information disclosed by either Party in connection with this Agreement, and Subscriber’s use of and payment for the Services. CI may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, Subscriber lists, employee information, financial information, confidential information concerning any of Owner’s past, current, or possible future programs, and confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, CI may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).

13.2 Treatment of Confidential Information. Owner’s CI shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know”. This Agreement imposes no obligation upon the Parties with respect to CI which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the CI; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure. The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any CI of the Owner. Within fifteen (15) days after termination of this Agreement, each Party shall certify in writing to the other that all copies of the other Party’s CI in any form, including partial copies, have been destroyed, returned, or used solely as the Owner so directs. If the Parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with entering into this Agreement, those separate confidentiality terms shall remain in full force to the extent they do not conflict with the confidentiality terms of this Agreement.

13.3 Continuing Obligation. PCS and Subscriber shall adhere to the terms of Sections 13.1 and 13.2 hereof and refrain from any disclosure or unauthorized use of CI of the other Party as described therein, following the expiration or termination of this Agreement for whatever reason.

13.4 Equitable Relief. PCS and Subscriber acknowledge and agree that any breach or threatened breach by a Party of the terms of Sections 13.1 through 13.3 hereof may threaten or cause irreparable injury to the other Party, and the other Party shall have the right to seek an injunction, specific performance, or other equitable relief in addition to any and all remedies at law to prevent such injury or threatened injury. The breaching Party further agrees to indemnify and hold harmless the other Party for reasonable attorneys’ fees, costs, and expenses incurred to obtain such relief.

14. ENTIRE AGREEMENT, MISCELLANEOUS TERMS.

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all previous agreements and understandings. PCS and Subscriber agree that there are no oral or written collateral representations or agreements between them with respect to the subject matter hereof, except as stated in this Agreement, and that there are no third party beneficiaries with direct rights to enforce the terms of this Agreement. Any provision of this Agreement that by its very nature or context is intended to survive any termination, cancellation or expiration thereof, including but not limited to provisions relating to license rights and restrictions, disclosure of information, indemnities, and payment of outstanding fees and taxes, shall so survive, and shall apply to respective permitted successors and assigns. In case of a conflict or inconsistency between the terms of this Agreement, the terms of this Agreement shall control unless otherwise expressly agreed in any such other document that (i) makes reference to this Agreement and (ii) has been approved and agreed to in writing by both Parties. This Agreement may not be altered, amended, or modified, unless in writing and signed by both Parties. The headings and captions used in this Agreement are inserted for reference purposes only and shall not constitute part of the Agreement. PCS and Subscriber are independent contractors of each other, and neither Party shall be deemed an employee, agent, representative, subcontractor, or co-venturer of the other Party. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of this Agreement will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches.

15. FORCE MAJEURE.

Neither Party shall be in default by reason of any failure in performance of its obligations under this Agreement (other than the payment of money) if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such Party, including but not limited to acts of God, fire, explosion, accident, strike, labor slowdowns or interruption, delay or failure of contractors or common carriers, civil commotion, war, acts of terrorism, embargo or governmental acts or regulations (each, a “Force Majeure Event”).

16. NOTICES.

All notices or other communications referenced under this Agreement shall be made in writing and sent to the Parties at their respective addresses set forth in the Order or to an address otherwise designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized overnight courier delivery; or electronic mail.

17. AUDIT RIGHTS.

PCS shall have the right to audit Subscriber’s access to and use of the Service and compliance with the terms of this Agreement at Subscriber’s premises from time to time in PCS’ sole discretion, but in no event more often than once annually. Subscriber agrees to permit PCS to have access to its facilities and personnel during normal business hours for the purpose of conducting such audits. In the event such audit reveals Subscriber is exceeding the scope of use permitted by this Agreement or otherwise not complying with the terms hereof, then, in addition to PCS’ other rights and remedies hereunder, Subscriber shall pay PCS’ additional fees for such use (at PCS’ then-current list price) and reimburse PCS for the costs of the audit.

18. GOVERNING LAW.

This Agreement and any dispute between the Parties shall be governed by the laws of the State of Indiana, without regard to choice of law or conflict of law principles thereof. Should any provision of the Agreement be held to be unenforceable or contrary to law, the remaining provisions shall remain in full force and effect. The Parties agree that if the governing law of this Agreement includes a statute commonly known as or substantially similar to the Uniform Computer Information Transactions Act (“UCITA”), the provisions of UCITA shall not apply to this Agreement or to the transactions contemplated hereunder.

19. ASSIGNMENT.

Neither Party may assign this Agreement or any rights or obligations hereunder, in whole or in part, except with the express prior written consent of the other Party, which shall not be unreasonably withheld, conditioned, or delayed. A change in majority ownership or control of a Party, and a sale of substantially all of the assets of a Party, shall not be deemed an assignment of this Agreement. Any attempted assignment without such consent shall be void and of no effect.

20. TAXES.

Subscriber agrees to promptly pay when due all sales, service, and other taxes arising from this Agreement and Subscriber’s access to and use of the Services, except for taxes based on the net income of PCS. Upon written request from PCS, Subscriber shall provide records that show payment of or exemption from any such applicable taxes.

21. USE OF NAME.

Each Party agrees that its name may be used by the other Party in any listing of clients or vendors intended for general marketing and press release purposes, but not as an endorsement of the other Party’s products or services, and that any other use of the Party’s name or other information about the Party for such purpose is allowed only with the prior written consent of such other Party.

22. RESTRICTED RIGHTS ONLY.

If the Subscription hereunder is granted directly or indirectly to and on behalf of the United States (“U.S.”) Government, the following terms shall apply. For civilian agencies and departments: the Software was developed at private expense and is “restricted computer software” submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights clause of FAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the United States. For units of the U.S. Department of Defense: the Services is “commercial computer software” and “commercial computer software documentation” under the Rights in Computer Software and Computer Software Documentation clause of DFAR 227.7202-3(a) and its successors, and all use, duplication or disclosure thereof is subject to the terms and restrictions of the Subscription and other terms set forth in this Agreement.