SOFTWARE MASTER SUBSCRIPTION AGREEMENT

1. Agreement; Order Forms.

This Master Subscription Agreement (the “Agreement”) governs any order form and any exhibits, schedules and attachments thereto (each, an “Order Form”) signed by the customer identified in that Order Form (“Customer”) and HealthcareSource HR, Inc. (“Licensor”). Each Order Form, together with this Agreement form the entire agreement that applies to the Services (as defined below). If any conflict exists between any of these documents, this Agreement will govern, followed by the Order Form.

HealthcareSource may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of http://www.healthcaresource.com where the prior version of this Agreement was posted, or by communicating these changes through any written contact method we have established with you. Customer’s entering into this Agreement and its continued use of the Services constitutes Customer’s acceptance of any such changes or amendments. Customer should regularly check this Agreement, as it may be amended from time to time.

2. Subscription; License Grant.

During the Term (as hereinafter defined), Licensor agrees to provide Customer with such services, including access to certain software-as-a-service online programs (“HealthcareSource Programs”), as are set forth on the Order Forms entered into between Licensor and Customer and attached hereto from time to time (collectively called “Services”).

In connection with the provision of the Services, Licensor may provide the Customer with access to certain proprietary information and materials, including without limitation user manuals, technical manuals, standard and customized forms, reports, software, courses, modules and other content such as assessment questions (collectively, the “Provided Materials”). Licensor hereby grants, and Customer accepts, a limited, worldwide, nonexclusive, non-transferable license to use and access such Provided Materials in connection with the Services, which license shall expire at the end of the Term (or upon earlier termination of this Agreement) and shall be subject to the terms of this Agreement and any applicable Order Forms. These Provided Materials are licensed and are not sold and, as between the parties hereto, Licensor will at all times retain exclusive ownership of all such Provided Materials, of all other proprietary information and materials in connection the Services, and of all intellectual property rights related thereto, including but not limited to, trademarks, trade names, copyrights, enhancements, modifications, discoveries, designs, developments, improvements, processes, software code and programs (including any HealthcareSource Programs), works of authorship, documentation, formulae, data, techniques, know-how, secrets or intellectual property rights or any interest therein and the related rights to make derivative works thereof (collectively, the “Licensor Products”).

3. EEs; Designated Site; Authorized Users.

A counted employee (“EE”) is defined as an employee of Customer at a Designated Site. A Designated Site shall be each facility identified in the “Facilities List” (Schedule 1) to the attached Order Form(s) at which Customer is authorized to use the Services consistent with the terms of this Agreement.

An “Authorized User” is defined as a EE who is authorized by the Licensor to access and use certain Licensor Products pursuant to any attached Order Form that are not available for use by all EEs. Applicant users shall be permitted to access and use the Services for the sole and exclusive purpose of accessing and completing certain applications and assessments that are provided to them by Customer in accordance with Customer’s use of the Services.

4. Pricing and Payment.

Pricing and invoicing for the Services shall be as set forth in each Order Form. All software updates, upgrades and improvements to the HealthcareSource Programs are included in the annual fees set forth in each Order Form. Except as otherwise provided in this Agreement, payment obligations are non-cancellable and all fees paid are non-refundable. Late payments will be subject to a 2% penalty per month, or the maximum amount permitted by law, whichever is lower.

5. Specific Prohibited Uses.

EEs and Authorized Users may access the HealthcareSource Programs and Provided Materials only in connection with the internal operations of Customer’s business. The following actions are prohibited: (i) using any device, software or routine to interfere or attempt to interfere with the proper working of the HealthcareSource Programs or any other element of the Services; (ii) reverse engineering, decompiling or disassembling any Licensor Products or any element thereof; (iii) copying, altering, modifying, adapting, translating or creating derivative works from any Licensor Products; (iv) removing any copyright, trademark or other proprietary notices from any Licensor Products; (v) making any of the Licensor Products available for third-party use, including without limitation disclosing to or sharing its passwords for any HealthcareSource Program or other Service with any third parties; (vi) using passwords for any unauthorized purpose; (vii) using any HealthcareSource Program or other Service to display or share any libelous, defamatory or inappropriate information; (viii) using any HealthcareSource Program or other Service to upload, display, share or otherwise transmit or disclose any Protected Health Information (PHI) or (ix) using any HealthcareSource Program or other Service to upload, display, share or otherwise transmit or disclose private information of third parties in any manner which violates state or federal laws (including HIPAA).

6. Customization.

In the event Customer requests that Licensor customize any of the Provided Materials or any other element of the Services for Customer’s use by incorporating assessment questions, materials, modules, software, courses or other content or information provided by Customer to the Licensor (“Customized Materials”), the Customer shall provide only such Customized Materials as are owned or licensed by the Customer for such use. In the event that such Customized Materials are not owned by Customer, Customer shall bear full responsibility for obtaining such licenses as are necessary and appropriate for the use of such third-party Customized Materials in connection with the Services. Licensor shall have no responsibility or liability whatsoever with regard to such third-party Customized Materials and any such claim by third parties shall be subject to the indemnification provisions of Section 16. Under no circumstances will the Customer provide Licensor with, or otherwise incorporate, any such third-party Customized Materials without first obtaining such licenses. If Licensor determines, in its sole discretion, that Customer has breached this Section 6, Licensor may terminate this Agreement immediately and without prior notice.

7. User Submissions.

Licensor acts as a conduit for the online distribution and publication of user-submitted information, has no obligation to screen or monitor communications or information posted by users and is not responsible for the content thereof. Nevertheless, Licensor reserves the right to remove any user-submitted information that is distributed or published in connection with any Service in violation of the terms of this Agreement or that Licensor, in its sole discretion, deems inappropriate.

8. Passwords.

Customer is responsible for monitoring the use of and maintaining the confidentiality of its passwords for accessing the Services and agrees to immediately notify Licensor of any unauthorized use of such passwords.

9. Audit.

Notwithstanding the foregoing, Licensor shall have the right to monitor Customer’s use of the Services during the Term of this Agreement. In the event that Licensor discovers: (i) the actual number of EEs exceeds the Population Size (as defined in the Order Form in connection with such Service) by ten percent (10%); or (ii) the actual number of users with respect to any Licensor Products exceeds the number of Authorized Users, Licensor reserves the right, in its sole discretion, to modify the license fees charged under the terms of such Order Form (including retroactively).

10. Confidentiality.

Customer acknowledges that the Licensor Products constitute property with intellectual property rights of substantial value to Licensor. Customer agrees that the Provided Materials and other Licensor Products will not be disclosed by Customer to any person or entity, except as expressly permitted pursuant to the terms of this Agreement, without the prior written consent of Licensor. Customer agrees to take reasonable security measures to prevent the unauthorized use, duplication or distribution of the Licensor Products and their collective elements which will be at least equal to that which Customer uses to protect its own proprietary information. Customer shall ensure that any individual leaving its organization is prohibited from accessing, copying or utilizing the Services or any Licensor Products. At the end of the Term, or upon any earlier termination of this Agreement, Customer shall return or destroy all Provided Materials and other Licensor Products provided to Customer by Licensor pursuant to the terms of this Agreement.

A party may disclose the other party’s confidential information if required by any judicial or government request, requirement, or order, provided, however, that such party will promptly notify the other party of any such request, requirement or order and will cooperate with the other party to contest any such request, requirement or order.

11. Customer Data.

Customer will own all data provided by Customer, its affiliates, and their users in connection with Customer’s use of the Services (“Customer Data”). Subject to this Section 11, Licensor agrees to take commercially reasonable security measures to prevent the unauthorized use, duplication or distribution of Customer Data to which Licensor has access.

If Customer uses any Service to access and analyze Customer Data, Customer: (i) represents that it has the right to and will provide such Customer Data to Licensor in compliance with applicable legal requirements; (ii) appoints Licensor its agent and authorizes it to use, copy, store, modify and display Customer Data through the applicable Service for Customer’s benefit; and (iii) authorizes Licensor to access Customer Data to provide quality assurance, perform software maintenance, and deliver customer service and technical support. In addition, Customer grants Licensor the right to collect, aggregate, maintain, process, use, disclose, transmit or otherwise provide to third parties all or any portion of Customer Data, either alone or aggregated with the Customer Data of other customers, for any purpose, provided that any Customer Data disclosed, transmitted or otherwise provided to any third party shall be anonymous as to and shall not personally identify or describe Customer, its affiliates, and their users and shall be in a form that cannot reasonably be linked back to Customer, its affiliates or their users.

During the term of this Agreement and for thirty (30) calendar days after its expiration or earlier termination, Licensor will preserve and maintain Customer Data. Upon termination of this Agreement Licensor will provide Customer with access to a SFTP site for a period of thirty (30) days and it is the responsibility of Customer to download a copy of the Customer Data during this time. Thereafter Licensor will have no obligation to preserve or return any Customer Data and Licensor will charge Customer for any additional return of Customer Data.

12. Support.

During the Term, phone and email-based support will be available to Customer from 7:00 AM until 7:00 PM (ET), Monday through Friday (except for Licensor recognized holidays). Such support may be provided directly by Licensor, or by an affiliate or sub-contractor. In connection with such support, Customer will be responsible for fielding and consolidating initial support requests, verifying the existence of software issues and answering software-use questions.

13. Term, Renewal and Termination.

This Agreement is effective on the date the first Order Form is fully executed by Customer and Licensor and shall remain in effect until terminated or until the expiration of all incorporated Order Forms (the “Term”). The initial term of each Order Form shall be set forth on such Order Form, and each such Order Form shall renew automatically for consecutive one-year terms (each, a “Renewal Term”) at Licensor’s prices in effect at the time of such renewal, unless either party provides the other party with at least sixty (60) days prior written notice of such party’s intent not to renew such Order Form; provided that no such automatic renewal shall occur at any time following the termination of this Agreement. Licensor shall not be obligated to provide the Services described in any Order Form during any such Renewal Term unless and until it has received full payment for such Services with respect to such renewal term. Either party may terminate this Agreement or any outstanding Order Forms if the other party has breached a material term of this Agreement (including without limitation, with respect to Customer, a breach of any provision of Section 5 hereof by an Authorized User) or any Order Form, and the breaching party has failed to remedy such breach within thirty (30) calendar days following written notice from the non-breaching party. Only in the event that Licensor has committed a material breach of this Agreement and has not cured such breach within thirty (30) days of receipt of such notice will Customer receive a prorated refund for the unexpired months for which payment has been received. Expiration or termination of this Agreement will not terminate any outstanding Order Forms and the terms of this Agreement shall survive any termination with respect to such Order Forms for the duration of the term of such Order Forms. Sections 10, 13, 15, 16, 17, 19, 21 and 23 shall survive any termination or expiration of this Agreement.

All non-renewal and/or termination notices must be sent via certified mail to:

HealthcareSource HR, Inc.
100 Sylvan Rd, Suite 100
Woburn, MA 01801 Attn: Legal Department

or such other address as Licensor may provide from time to time.

14. Warranty and Disclaimer.

Licensor warrants that the HealthcareSource Program and other Services will operate in accordance with user manuals provided by Licensor for such Services, provided that such Services are used by Customer in the manner intended and as authorized by this Agreement and further provided that Licensor makes no warranties regarding the performance or conformance to such specifications of each of the Services if used by Customer in a manner other than as intended and as authorized by this Agreement.

LICENSOR DOES NOT WARRANT THAT THE HEALTHCARESOURCE PROGRAMS AND OTHER SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES, LICENSOR PRODUCTS, OR LICENSOR’S SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF CUSTOMER’S USE OF THE SERVICES RESULTS IN THE NEED FOR REPLACING DATA, SOFTWARE OR HARDWARE, LICENSOR WILL NOT BE RESPONSIBLE FOR ANY COSTS IN CONNECTION WITH SUCH REPLACEMENTS. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. LICENSOR, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE. LICENSOR MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR SECURITY OF THE SERVICES OR ANY LICENSOR PRODUCTS.

15. Indemnification by Licensor.

Licensor will defend, indemnify and hold harmless Customer against all claims and expenses, including reasonable attorneys’ fees, arising from any third-party claim alleging that any Licensor Products (collectively, the “Indemnified Products”) infringe the United States copyright, trademark, or service mark rights of any third party (each, an “Indemnified Claim”), if Customer, in connection with such Indemnified Claim: (a) has used the Indemnified Products in full compliance with this Agreement; (b) promptly notifies Licensor of such Indemnified Claim; (c) allows Licensor to have sole control of the defense and settlement of such Indemnified Claim (though Customer may participate in its own defense at its own expense); and (d) provides Licensor with the authority, information and assistance that Licensor deems reasonably necessary for the defense and settlement of such Indemnified Claim. Customer shall not consent to any judgment or decree or do any other act in compromise of any such Indemnified Claim without first obtaining Licensor’s written consent. If an Indemnified Claim is brought or credibly threatened, Licensor shall have the option, at its sole expense, to obtain for Customer the right to continue using the Indemnified Products or modify the Indemnified Products so that they become non-infringing. If neither of the foregoing remedies are commercially feasible, Licensor may terminate Customer’s subscription with respect to the Service(s) that utilize such Indemnified Product(s), and refund an amount equal to one-twelfth of the applicable annual fees paid by Customer for such Service(s) for the subscription year in which the termination occurs, multiplied by the number of months remaining in that subscription year. The indemnity set forth in this Section 15 shall be Customer’s sole and exclusive remedy for any intellectual property infringement claim arising out of Customer’s use of the Services or Licensor Products.

16. Indemnification by Customer.

The HealthcareSource Programs and other Services are venues for the distribution and publication of user-submitted information hosted by Licensor, including venues for behavioral based assessments, for employers to post information regarding employees and job opportunities, and for candidates to post applications. Licensor does not modify, screen or censor any such material that is posted and is not involved in communications or negotiations between employers and employees, job applicants or other third parties. As a result, Licensor has no control over the quality, safety or legality of information posted or otherwise available through the Services other than Provided Materials (although it reserves the right to remove any posted information that violates the terms of this Agreement or that it deems inappropriate), the truth or accuracy of the listings, the ability of employers to offer job opportunities to candidates or the ability of candidates to fill job openings. Because user authentication on the Internet is difficult, Licensor cannot and does not confirm that each user who posts content through the HealthcareSource Programs is who they claim to be. Because Licensor does not and cannot be involved in user-to-user dealings (e.g. Customer to applicant dealings, Customer to employee dealings, etc.) or control the behavior of participants, in the event that Customer has a dispute with one or more users, Customer agrees to indemnify, defend and hold harmless Licensor, its directors, officers, employees and agents from any and all claims, demands, and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Customer acknowledges and agrees that it is solely responsible for the form, content and accuracy of the information that is entered in connection with any Service.

Customer will defend, indemnify and hold harmless Licensor, its officers, directors, employees and agents, from and against any claims, actions or demands, alleging, arising or resulting from Customer’s use of any Services (including making such Services available to third-party applicants) or its breach of the terms of this Agreement, including, but not limited to, (i) the posting, sharing, transmission, display or other improper use of any Protected Health Information (PHI), (ii) using any HealthcareSource Program or other Service to upload, display, share or otherwise transmit or disclose private information of third parties in any manner which violates state or federal laws (including HIPAA), (iii) providing the Licensor with any Customized Materials without adhering to the provisions of Section 6, or (iv) incorporating any questions, materials, modules, software, courses or other content or information created, owned or licensed by any third party into any Customized Materials to be used by Customer in connection with the Services without adhering to the provisions of Section 6. Licensor shall provide notice to Customer promptly of any such claim, suit, or proceeding and shall assist Customer, at Customer’s expense, in defending any such claim, suit or proceeding.

17. Limitation of Liability for all Services.

EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 10, 15 OR 16, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT AND/OR FROM THE USE OF THE SERVICES PROVIDED HEREUNDER EXCEED THE HIGHEST AMOUNT PAID BY CUSTOMER TO LICENSOR IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTION 10, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY IN CONTRACT, TORT OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR HAVE ANY LIABILITY FOR CLAIMS RELATING TO BUSINESS DECISIONS MADE BY CUSTOMER IN RELIANCE UPON ANY OF THE SERVICES.

18. No Assignment.

This Agreement will inure to the benefit of and be binding upon the parties, their successors and permitted assigns. This Agreement may not be assigned or otherwise transferred by Customer (whether via sale, merger, change in control, by operation or law or otherwise), without Licensor’s prior written consent, and any such purported assignment or transfer shall be void.

19. Governing Law; Venue.

This Agreement shall be governed by and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to its conflicts of law rules. Any proceeding arising out of or relating to this Agreement shall be brought in the courts of the Commonwealth of Massachusetts. This provision may be filed with any court as written evidence of the knowing and voluntary irrevocable agreement among the parties to waive any objections to jurisdiction, venue or convenience of forum.

20. Governing Bodies.

Some of the Provided Materials are Internet-based education programs (“Courses”) designed to provide training to users and in some cases training on compliance with the laws and regulations of the United States, agencies of the United States Government or designees of the United States Government (collectively, “Governing Bodies”). The Courses do not address or include all provisions of the laws and regulations as published and interpreted by the Governing Bodies. Additionally, the Governing Bodies may revise or update the laws and regulations and these changes may not be reflected in the Courses at the time Customer is using the Courses. Neither Customer nor its Authorized Users should rely solely on the information contained in the Courses and Customer and its Authorized Users should separately refer to the actual laws, regulations and interpretations published by the Governing Bodies. Licensor is under no obligation to update the Courses to reflect any changes in the laws or regulations of the Governing Bodies. Licensor makes no representations or warranties that any particular Course fulfills the regulatory compliance requirements of any particular healthcare organization, as it is the organization’s responsibility to make such final determinations regarding regulatory compliance requirements. Because of this, Licensor reserves the right, in its sole discretion, to discontinue any of the Courses.

21. Severability; No Waiver.

If any one or more of the provisions in this Agreement are determined invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement; provided, however, if a court finds any provision of this Agreement may be rewritten to be valid, legal and enforceable, the parties agree that such court shall rewrite the provision.

The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.

22. Force Majeure.

Non-performance of either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by acts of God, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers or any other reason when failure to perform is beyond the control of the non-performing party.

23. Miscellaneous.

Each party hereto agrees that a breach of Sections 5 or 10 of this Agreement will cause irreparable injury to the other Party, that money damages would not be a sufficient remedy for any failure to comply with the provisions of this Agreement and that in addition to all other remedies in the event of any failure or alleged or threatened failure to comply with the provisions of this Agreement the other Party shall be entitled to equitable relief, including injunction and specific performance, in each case without being required to prove irreparable harm or damages, post a bond or otherwise provide security. This provision shall not in any way limit such other remedies as may be available to the Parties at law or in equity. Unless otherwise expressly identified as exclusive in this Agreement, no remedy by either party shall be considered an exclusive remedy, and such party is entitled to pursue any remedy available under this Agreement or otherwise at law or equity. No terms of this Agreement are enforceable by any person who is not a party to it.  

Version 2.0
August 19, 2016