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). Each Order Form and any exhibits, schedules and attachments thereto shall be incorporated into and become part of and subject to this Agreement. If any conflict exists between any of these documents, this Agreement will govern, followed by the Order Form. Any Customer documentation (including Customer’s purchase order terms and conditions) that conflicts with or attempts to modify this Agreement or any Order Form in any way is hereby rejected and of no effect unless specifically agreed to in writing signed by Licensor.

Licensor 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.

Subject to Customer’s compliance with this Agreement and the Order Form(s), Licensor agrees to provide Customer with such services specified in the Order Form(s) (the “Services”) during the Term (as hereinafter defined). In connection with the provision of the Services, Licensor may provide Customer with access to certain software-as-a-service online programs (“HealthcareSource Programs”) and certain proprietary information and materials including, without limitation, user manuals, technical manuals, standard and customized forms, reports, software, courses, modules, assessment questions, and other content (“Provided Materials”) on a limited, worldwide, non-exclusive, non-transferable, and revocable basis.

Subject to Customer’s compliance with this Agreement and the Order Form(s), Licensor hereby grants to Customer, during the Term, a limited, worldwide, nonexclusive, non-transferable license to access and use certain HealthcareSource Programs and Provided Materials solely in connection with the Services and for Customer’s internal business operations. The HealthcareSource Programs and Provided Materials are licensed and are not sold and, as between the parties hereto, Licensor will at all times retain exclusive ownership of all HealthcareSource Programs, 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”).

Customer shall ensure that any individual leaving its organization is prohibited from accessing, copying or utilizing the Services or any Licensor Products. Customer shall return or destroy all Provided Materials and other Licensor Products at the end of the Term, or upon any earlier termination of this Agreement.

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. Customer acknowledges and agrees that neither it nor any of its employees, Authorized Users, or agents shall at any time: (i) use 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 engineer, decompile or disassemble any Licensor Products or any element thereof; (iii) copy, alter, modify, adapt, translate or create derivative works from any Licensor Products; (iv) remove any copyright, trademark or other proprietary notices from any Licensor Products; (v) make 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) use passwords for any unauthorized purpose; (vii) use any HealthcareSource Program or other Service to display or share any libelous, defamatory or inappropriate information; (viii) use any HealthcareSource Program or other Service to upload, post, reproduce or distribute any information, software, or other material protected by copyright or any other intellectual property right (including right of publicity and privacy) without first obtaining the permission of the owner of such right; (ix) use any HealthcareSource Program or other Service to upload, display, share or otherwise transmit or disclose any Protected Health Information (PHI); or (x) use 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.

“Confidential Information,” for purposes of this Agreement, shall mean all information and know-how (whether or not patentable and whether or not copyrightable) owned, possessed, licensed or used by one party hereto (“Owner”) that Owner discloses or has disclosed to the other party (“Recipient”) or to which Recipient gains or has gained access by virtue of the parties’ relationship, in each case prior to or after the execution of this Agreement, including, without limitation, any invention, product, formula, method, technique, algorithm, project, development, plan, vendor or customer information, equipment, trade secret, process, research, reports, laboratory, financial or technical data, marketing or operational information, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost and personnel data and human resources information, provided, that Confidential Information shall not include information which (1) is or becomes available to the public other than as a result of disclosure by Recipient or its employees in violation of this Agreement; (2) Recipient can demonstrate was known to Recipient prior to Recipient’s receiving the same pursuant to this Agreement and not otherwise restricted by contract or law; or (3) becomes available to Recipient on a non-confidential basis from a third person or source not restricted by contract or law regarding such information. For avoidance of doubt, Licensor Confidential Information shall include all algorithms, data, Licensor Products, Provided Materials and other content (excluding Customer Data as defined below) delivered to Customer in the course of providing services pursuant to this Agreement.

Recipient agrees to safeguard Owner’s Confidential Information in a manner not less than that employed to protect each such party’s own proprietary information and always with at least a commercially reasonable degree of care and to prevent the unauthorized, negligent or inadvertent use, copying or disclosure thereof.

Recipient shall use Owner’s Confidential Information only in the course of performing this Agreement and for no other purpose. Recipient shall have the right to disclose Owner’s Confidential Information only (i) to those of its employees, representatives, agents and contractors who have a need to know the same and who have executed a confidentiality agreement in favor of Recipient or otherwise owe Recipient a duty of confidentiality, and (ii) as required by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient as soon as reasonably practicable shall provide notice thereof to Owner and, at Owner’s reasonable request and expense, assist Owner in obtaining a protective order or otherwise prevent public disclosure of such information. Recipient as soon as reasonably practicable shall notify Owner of any unauthorized use or disclosure of Owner’s Confidential Information by Recipient or any Recipient employees, representatives, agents or contractors. Following the expiration or termination of Recipient’s rights to use Owner’s Confidential Information under this Agreement (including the Supplements), Recipient at Owner’s request will return to Owner all such Confidential Information delivered or disclosed, together with all copies thereof at any time made by such party.

11. Customer Data.

Customer will own all data provided to Licensor by Customer, its affiliates, and their users in connection with Customer’s use of the Services or Licensor’s performance of this Agreement (“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 latest signature date below and shall remain in effect until terminated or until the expiration or termination 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, 20, 23 and 26 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 Programs 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 AND ITS THIRD PARTY PROVIDERS DO 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 AND ITS THIRD PARTY PROVIDERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE. LICENSOR AND ITS THIRD PARTY PROVIDERS MAKE 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: (i) has used the Indemnified Products in full compliance with this Agreement; (ii) promptly notifies Licensor of such Indemnified Claim; (iii) 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 (iv) 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 (i) Customer’s use of any Services (including making such Services available to third-party applicants); (ii) allegations that the Customer Data, or any use thereof, infringes the legal or intellectual property rights of any third-party; or (iii) its breach of the terms of this Agreement, including, but not limited to, (A) the posting, sharing, transmission, display or other improper use of any Protected Health Information (PHI), (B) 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), (C) providing the Licensor with any Customized Materials without adhering to the provisions of Section 6, or (D) 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 15 OR 16 OR CUSTOMER’S BREACH OF SECTION 10, 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.Third Party Connections.

Certain HealthcareSource Programs allow Customer to configure them to interact with third-parties. Customer is fully responsible for any required third-party account setup or fees levied by such third-parties for using their services. Licensor is only acting as an intermediary for Customer in connection with Customer’s interactions with such third-parties through the HealthcareSource Programs and is authorized by Customer to utilize Customer’s third-party account credentials as required to provide the third-party services or information through the HealthcareSource Programs. Customer shall provide Licensor with any relevant terms and conditions from Customer’s agreement with each third-party to allow Licensor to comply with such agreement. Some third-parties restrict the ability of intermediaries to access services that the third-party provides Customer and may require Customer to execute additional agreements to enable the HealthcareSource Programs to interact with the third-party.

Applicable HealthcareSource Program interacts with a third-party service through interfaces controlled by the third-party, therefore, Licensor has no control as to the availability of the third-party interface or the use of the third-party service through the HealthcareSource Program. Licensor is not responsible for the availability of a particular third-party service in the HealthcareSource Program, because each third-party controls access to its third-party service.

The Order Form will indicate the number and type of third-party interfaces to be active for the HealthcareSource Program. Customer may select the actual third-party interfaces that Licensor provides support for from time to time, subject to any limits on the number of third-party interfaces indicated on the Order Form or in the documentation, and payment of any applicable interface activation fees. Customer acknowledges that there is no guarantee that a particular third-party interface is, or will remain, available and that Licensor shall have no obligation or liability related to the accuracy, reliability, completeness, timeliness or security of the third-party interfaces. Additional available third-party interfaces may be ordered by Customer by way of an Order Form.

Licensor’s sole obligations to Customer with respect to third-party interfaces are to make reasonable efforts to support and maintain existing third-party interfaces, to deliver Customer instructions to third-parties through such interfaces, and to obtain, on Customer’s behalf and request, data from third-parties through such interfaces. Licensor has no obligation to Customer regarding the completion by the third-party of Customer’s instructions delivered to the third-party through the HealthcareSource Program third-party interface. Licensor is not responsible for and shall have no liability related to any fees owed by Customer to any third-party service provider arising from Customer’s use of the third-party interfaces.

19. 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.

20. 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

21. 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.

22. Government End Users.

If Customer is acquiring the Provided Materials, Licensor Products or Services by or on behalf of the U.S. Government then the U.S. Government’s rights in the Provided Materials, Licensor Products or Services will be only as set forth in this Agreement. The Provided Materials, Licensor Products and Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Provided Materials, Licensor Products and Services with only those rights set forth herein. Contract/Manufacturer is: HealthcareSource HR, Inc., 100 Sylvan Rd., Suite 100, Woburn, MA 01801.

23. Severability; No Waiver; Amendment.

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.

This Agreement may be amended, modified or superseded only by a written instrument signed by the parties.

24. 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.

25. Relationship of the Parties.

In making and performing this Agreement, the parties act and shall act at all times as independent contractors, and nothing contained herein shall be construed or implied to create an agency, association, partnership or joint venture between the parties. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.

26. 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. Customer agrees that it will not import, export or re-export the Provided Materials, Licensor Products or Services, including technical data, to any country, person, entity or end user in violation of U.S.A. export control laws, regulations or restrictions. 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 3.0
March, 2017