This Master Services Agreement (“MSA”) governs Customer’s acquisition and use of ContinuumCloud Services. By signing an Order Form or Statement of Work (“SOW”) that references this Agreement, or by using any ContinuumCloud Services, Customer accepts the terms and conditions of this Master Services Agreement and any Terms of Service (located at www.continuumcloud.com/customeragreements/) associated with the services referenced in the Order Form or SOW or used by Customer. This MSA, together with one or more executed Order Forms and/or SOWs and any associated Terms of Service, each of which is incorporated herein by reference, represent the entire understanding between ContinuumCloud and Customer.

This MSA, any executed Order Forms and/or SOWs that reference this Agreement, and any associated Terms of Service are collectively referred to herein as this “Agreement”. Capitalized terms have the definitions set forth herein. ContinuumCloud and Customer may hereinafter be referred to singularly as a “Party” and collectively as the “Parties”.

1. Provision of Services
   1. SaaS Services. Subject to the terms and conditions of this MSA, ContinuumCloud will provide Customer with the software services and other services detailed in one or more Order Forms, which will be provided as hosted applications by a cloud service provider (“SaaS Services”) and include all Implementation Services and any Professional Services as requested and agreed in a SOW (as such terms are hereinafter defined). The SaaS Services will be provided for the duration of the term set forth in an Order Form (“Subscription Term”).
   2. Access to SaaS Services. This MSA confers a non-exclusive, non-transferable license to utilize the SaaS Services solely for Customer’s internal business purposes throughout the Subscription Term. ContinuumCloud will provide the necessary passwords, technical specifications, end user requirements, or other relevant information as may be necessary to allow Customer, its affiliates, or their employees and contractors who are authorized by Customer to access the SaaS Services on Customer’s behalf (“Authorized Users”) to utilize the SaaS Services. Customer may permit any Authorized Users to access and use the features and functions of the SaaS Services as contemplated by this Agreement. Customer will comply with all applicable Laws regarding the privacy and security of information submitted to, or used in conjunction with the SaaS Services, will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services, and will notify ContinuumCloud promptly of any such unauthorized use known to Customer.
   3. Implementation Services. Customer may request technical assistance and services related to the implementation of the SaaS Services for the Customer such as project planning, detailed discovery, system configuration, data migration, testing, and training (“Implementation Services”). ContinuumCloud has provided Customer with an estimate for such Implementation Services in a separate SOW, which will reference and incorporate the terms and conditions of this Agreement, to be executed by authorized representatives of the parties, and will include a description of the Implementation Services and the schedule for the performance of the Implementation Services. Actual time required may increase depending on Customer’s actual requirements. ContinuumCloud will advise Customer if the time spent is approaching the Estimate, and upon Customer’s approval, the Parties will sign a change order for the additional time required. To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this MSA, the terms and conditions of this MSA will govern unless the SOW explicitly references the conflicting terms and conditions of this MSA and notes that it is intended to control over such terms and conditions.
   4. Professional Services. Customer may request additional technical services (“Professional Services”) such as system enhancements, consultation or training services throughout the Subscription Term. ContinuumCloud will provide Customer with an estimate for such Professional Services in a separate SOW, which will reference and incorporate the terms and conditions of this Agreement, to be executed by authorized representatives of the parties, and will include a description of the Professional Services, the schedule for the performance of the Professional Services, and the related fees and expenses. To the extent that a conflict arises between the terms and conditions of the SOW and the terms of this MSA, the terms and conditions of this MSA will govern unless the SOW explicitly references the conflicting terms and conditions of this MSA and notes that it is intended to control over such terms and conditions.
   5. Changes to Services. The SaaS Services, Implementation Services, and Professional Services are collectively referred to as the “Services”. ContinuumCloud may, in its sole discretion, make any changes to the Services that it deems necessary or useful to (i) maintain or enhance the quality or delivery of the Services, or (ii) to comply with applicable law.
2. Fees and Payments
   1. Invoicing and Fees. In consideration of the SaaS Services provided to Customer as detailed in one or more Order Forms or SOW’s, along with any other Services performed by ContinuumCloud under this Agreement, ContinuumCloud will invoice Customer and Customer will pay to ContinuumCloud the recurring and one-time fees set forth in the Order Form or SOW (“Fees”) in accordance with the applicable invoice and payment schedule set forth therein. Except as otherwise specified herein or in an Order Form or SOW, a) all executed Order Forms or SOWs are non-cancellable, b) payment obligations are non-cancellable and all fees paid are non-refundable, c) SaaS Services and quantities purchased shall not be decreased, removed, or cancelled during the relevant subscription term, and d) SaaS Services and quantities may be added during a Subscription Term, coterminous with the current Subscription Term End Date, by execution of an Order Form. Except as otherwise specified in an Order Form or SOW, ContinuumCloud reserves the right to increase the Fees for each 12-month period during a Subscription Term or at any subsequent renewal of a Subscription Term (“Annual Price Increase”).
   2. Payment. Customer will provide ContinuumCloud with valid and updated ACH or credit card information (“Payment Method”), and Customer authorizes ContinuumCloud to charge such Payment Method for all Services listed in the Order Form or SOW for the initial subscription term and any renewal subscription term(s) as set forth therein. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form or SOW. Unless otherwise stated in the Order Form or SOW, invoiced fees are due immediately upon the invoice date. Manual payments or alternative payment methods are not accepted unless explicitly approved in writing by ContinuumCloud, and will be subject to an administrative processing fee. Customer is responsible for providing complete and accurate billing and contact information to ContinuumCloud and notifying ContinuumCloud of any changes to such information.
   3. Overdue Charges. If any invoiced amount is not received by ContinuumCloud by the due date, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
   4. Suspension of Service. Except as otherwise required or prohibited by applicable law, if any charge owing by Customer under any Order Form or SOW is thirty (30) days or more overdue, ContinuumCloud may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided that ContinuumCloud provide Customer at least ten (10) days prior written notice that its account is overdue and is subject to suspension. Suspension of Services pursuant to this Section shall not relieve Customer of the obligation to pay for all Services for the full Subscription Term.
   5. Payment Disputes. ContinuumCloud will not exercise its rights under the Overdue Charges and Suspension of Service sections above (Sections 2.3 and 2.4, respectively) or the Termination for Cause section below (Section 11.2) if Customer is disputing the applicable charges reasonably and in good faith, provides written notice containing reasonable detail about the specific charges and nature of the dispute to ContinuumCloud within thirty (30) days of the invoiced charges, and is diligently cooperating to resolve the dispute.
   6. Taxes. ContinuumCloud’s Fees do not include any taxes, levies, duties, tariffs or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If ContinuumCloud has the legal obligation to collect or pay Taxes for which Customer is responsible under this section, ContinuumCloud will invoice Customer and Customer will pay that amount unless Customer provides ContinuumCloud with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, ContinuumCloud is solely responsible for taxes assessable against it based on its income, property and employees.
3. Customer Obligations and Restrictions
   1. Evaluation and Acceptance of the Services. Customer has (i) evaluated the Services, (ii) understands all capabilities and limitations of the Services, and (iii) accepts the Services for its internal business purposes.
   2. Conditions of Access and Use. Customer will ensure that only Authorized Users are permitted to access and use the Services. Authorized Users shall not, directly or indirectly, provide, sell, transfer, grant, supply, or otherwise share access with others. Customer shall be solely responsible for the actions of and compliance with applicable law by, all persons in the use or misuse of the Services.
   3. Compliance with Privacy and Data Security Laws. Customer acknowledges that it (a) shall be responsible for its compliance with all applicable federal, state, and local laws (“Laws”), ordinances, and/or administrative requirements for ensuring the privacy, security, and confidentiality of, limitations on access to, use, and disclosure of customer or patient records, data, and other information input into or stored on ContinuumCloud’s hosted applications, created, processed, maintained, or transmitted by or on behalf of Customer or Authorized Users using the SaaS Services, or otherwise included in its client records (“Customer Data”), including personal information (“Personal Information”) and Personal Health Information (“PHI”), and for compliance with all regulations promulgated under or relating to the Health Information Portability and Accountability Act of 1996, as amended (“HIPAA”); (b) shall establish and maintain a compliance program to ensure that its Authorized Users, employees, agents, and contractors safeguard the privacy and security of Customer Data; and (c) is responsible for implementing a reasonable and appropriate data security program to prevent unauthorized access to Customer Data. If the Services will include exposure to PHI or Personal Information, Customer agrees to be bound by ContinuumCloud’s Business Associate Agreement.
   4. Customer Systems. Customer shall be responsible for obtaining and maintaining the functionality and security of all equipment and ancillary services needed to connect to, access, or otherwise use the Services, including but not limited to telecommunications systems, hardware, servers, third-party software, operating systems, networks, and web servers (“Customer Systems”).
   5. Maintenance of Configured Services. Customer will be responsible for on-going maintenance of the configuration of the Services, which generally includes entering Customer Data and choosing screen configurations, custom field additions, and drop-down values.
   6. Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access any part of the SaaS Services except as expressly allowed herein; (b) modify, adapt, alter, or translate any part of the Services; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or otherwise allow the use of the SaaS Services for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure, or organization) of the SaaS Services, except as expressly permitted by law; (e) interfere in any manner with the operation of the SaaS Services; (f) modify, copy, or make derivative works based on any part of the SaaS Services; (g) access or use the SaaS Services to build a similar or competitive product or service; or (h) otherwise use the SaaS Services in any manner inconsistent with applicable law or this Agreement. Customer acknowledges and agrees that the Services will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
4. Customer Data
   1. Data Entry. Customer is and shall be solely responsible for the entry of any and all Customer Data, including but not limited to entries to individual health and/or personnel records. Control, direction, and the accuracy of the entry of Customer Data is the sole responsibility of Customer.
   2. Ownership; License. All right, title, and interest in the Customer Data and all intellectual property rights therein, and all modifications and enhancements of the same, belong to and are retained solely by Customer. Nothing in this Agreement is intended to or may be construed to transfer any rights in any part of the Customer Data to ContinuumCloud other than as explicitly provided for in this Agreement. Customer hereby grants to ContinuumCloud a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ContinuumCloud to provide the Services, subject to compliance by ContinuumCloud of its obligations under this Agreement. Notwithstanding anything in this Agreement to the contrary, ContinuumCloud may collect, use, distribute, market and sell de-identified data arising from, or input during, Customer’s or Authorized Users’ use of the Services, including, but not limited to, analytics, benchmarking, research, and product development; provided, that such use or data (a) shall not include any Customer Data, and (b) shall not be able to identify Customer, any Authorized User, or any other individual and shall not be able to be re-identified. Except for the foregoing limited license, ContinuumCloud shall not otherwise use, disclose, distribute, publish, sell, market, or commercialize Customer Data, create derivative products or applications based on Customer Data, or otherwise use Customer Data in any manner not required by applicable Laws, expressly permitted in this Agreement or the Business Associate Agreement, or permitted in writing by Customer.
   3. Publicity and Reference Rights. Customer grants ContinuumCloud a limited, non-exclusive, non-transferable, royalty-free license to use Customer’s name, logo, and trademarks (“Customer Marks”) solely for the purpose of identifying Customer as a client in ContinuumCloud’s marketing and promotional materials, including its website, presentations, and social media channels. This may include general client listings, case studies, testimonials, and press releases, provided that any use is accurate and professional. Customer may revoke this permission at any time by providing written notice to legal@continuumcloud.com, in which case ContinuumCloud will cease further use of Customer Marks within thirty (30) days of receipt of such notice. Any materials already in circulation or published prior to the revocation may continue to be used for their intended duration.
5. Customer Support
   1. Customer Support Services. ContinuumCloud will provide the following services to Customer (collectively, “Customer Support Services”): (i) assistance in gaining access to, understanding, and utilizing the SaaS Services, (ii) access to and clarification of ContinuumCloud’s online knowledgebase which provides technical documentation related to the SaaS Services, (iii) guidance on SaaS Services operation and configuration, and (iv) verification, analysis, and correction of Defects (as defined in Section 6.7 below). The fees for such Customer Support Services are included with the SaaS Services license as set forth on the Order Form.
   2. Additional Support Services. ContinuumCloud may provide additional services, at its then current rates for such services, at the Customer’s reasonable request and agreement to support their ongoing operations. These additional services may include but are not limited to (i) additional training beyond the original scope or outside of an existing SOW, (ii) additional SOWs requested by the Customer and agreed upon by ContinuumCloud, and (iii) further investigation of reported issues.
   3. Support Contacts. The Customer may appoint contacts to receive technical support from ContinuumCloud (“Support Contacts“). The Customer will identify the Support Contacts and may appoint replacement representatives upon notice to ContinuumCloud. The Customer acknowledges that ContinuumCloud is not obligated to provide technical support other than to the Customer’s identified Support Contacts.
   4. Regular Hours for Support Services. ContinuumCloud offers Customer Support Services Monday through Friday during regular business hours, excluding public holidays. The specific hours of availability and support request methods can be found in the applicable product Terms of Service located at www.continuumcloud.com/customeragreements/. These support services are subject to change at ContinuumCloud’s discretion.
6. Service Level Commitment
   1. Commitment. During the Subscription Term, the SaaS Services will meet the service levels specified in this Section 6 (the “Service Level Targets”). If the SaaS Services fail to achieve the Service Level Targets, then Customer will be entitled to a credit for the SaaS Services in accordance with Section 6.4 below (a “Service Credit”).
   2. Service Availability. During each calendar month of the Subscription Term of a particular SaaS Service, ContinnuumCloud commits to provide 99.8% availability of the SaaS Service, excluding maintenance times (“Service Availability”). ContinuumCloud measures the Service Availability over each calendar month by dividing the difference between the total number of minutes in the monthly measurement period and any Unplanned Downtime by the total number of minutes in the monthly measurement period and multiplying the result by 100 to reach a percent figure. “Unplanned Downtime” means any time during which a problem with the SaaS Services would prevent Customer from logging in or accessing the SaaS Services. ContinuumCloud will make reasonable efforts to notify affected customers and restore service promptly. ContinuumCloud shall calculate any Unplanned Downtime using ContinuumCloud’s system logs and other records. Unplanned Downtime does not include any time during which the SaaS Services is not available due to any suspension or termination of the applicable SaaS Services, or any other unavailability or performance issue that results from Customer’s and/or a third party’s equipment, software, services, or other technology (other than third party equipment or services within ContinuumCloud’s direct control).
   3. Scheduled and Unscheduled Maintenance. Scheduled Maintenance and Unscheduled Maintenance does not count as Unplanned Downtime for the purposes of calculating any Service Credit. Maintenance is considered to be ‘scheduled’ (“Scheduled Maintenance”) if it is communicated to Customer by email or through an automated message at least one week in advance of the scheduled maintenance time. Scheduled maintenance usually occurs outside of regular business hours and generally accounts for less than 10 hours each calendar month. ContinuumCloud, in its sole discretion, may take the SaaS Services down for ‘unscheduled’ maintenance (“Unscheduled Maintenance”) to address material issues affecting stability, security, or regulatory compliance, and in that event will attempt to notify Customer in advance by email or through an automated message within the application.
   4. Credit Remedy. If, in any calendar month, the Service Availability target is not met by ContinuumCloud, and Customer was negatively impacted, ContinuumCloud shall provide, as Customer’s sole and exclusive remedy, a Service Credit based on the monthly fee for the use of the applicable SaaS Service, as follows:
      

      Service Availability	<99.8% and >=99.5%	<99.5%
      Service Credit	5%	10%

   5. Service Credit Request. In order to receive a Service Credit as described herein, Customer must email ContinuumCloud at accountsreceivable@ContinuumCloud.com to request a Service Credit within 30 calendar days from the end of the month in which the Service Availability target was not met, and Customer must provide details of the claim, as reasonably requested by ContinuumCloud. Customers with accounts that are past due or who are in default with respect to any payment due to ContinuumCloud or any other material contractual obligation are not eligible for any Service Credit. A Service Credit, if issued, will be applied to the Customer’s next regular invoice following 15 business days from receipt of the request.
   6. Response Times. ContinuumCloud will respond to and use commercially reasonable efforts to identify, address, and correct any malfunctions or failures (“Defects“) of the SaaS Services that materially prevent or impair the functionality, performance, or availability of the system or services. Defects include any issue resulting in nonconformance with specifications outlined in applicable documentation. ContinuumCloud will respond to and address Defects, at no additional charge, in accordance with the following schedule:
      1. Priority Level 1: “Service Outage,” meaning the SaaS Services are not reasonably accessible. Upon receipt of a communication from Customer indicating that a Priority Level 1 event has occurred, ContinuumCloud will provide an acknowledgement or notification of the Service Outage within one (1) hour, and use commercially reasonable efforts to provide a fix or work around for the Service Outage within twenty-four (24) hours after receipt of such communication by ContinuumCloud.
      2. Priority Level 2: A function does not work as designed or in accordance with the Service Availability and no reasonable work-around exists. Upon receipt of a communication from Customer indicating that a Priority Level 2 event has occurred, ContinuumCloud will provide an acknowledgement or notification within one (1) business day. All Priority Level 2 requests will be handled during normal business hours. ContinuumCloud will use commercially reasonable efforts to provide a fix or work around for Priority Level 2 cases after receipt of the report.
      3. Priority Level 3: A function does not work as designed or in accordance with the Service Availability but a reasonable work-around exists or Customer is able to wait for the next Release for a fix. All Priority Level 3 requests will be handled during normal business hours. ContinuumCloud will use commercially reasonable efforts to identify a resolution to Priority Level 3 cases within thirty (30) days after receipt of the report and incorporate Priority Level 3 fixes in the next Release of the product.
   7. Patches and Workarounds. Between any regular, scheduled update which provides significant new functionality or capability of the SaaS Services (“Update”), ContinuumCloud may, at its discretion: (i) provide a “patch” or software fix developed to quickly resolve a Defect or critical regulatory requirement, with the understanding that the patch has not been through a comprehensive quality assurance testing cycle and may itself contain Defects; or (ii) suggest a “workaround,” or change, in the procedures followed or method of entry of Customer Data to avoid a Defect without materially impairing Customer’s use of the Services.
   8. Exceptions. ContinuumCloud will not be responsible for Service Outages, Downtime, Defects, or other failures that are caused by the following: (i) latency or downtime due to acts or omissions of Customer, (ii) acts of unauthorized third parties; (iii) Internet latency, failures, or outages outside of ContinuumCloud’s control; or (iv) problems associated with Customer Systems.
7. Data Security
   1. Data Security. ContinuumCloud will continually maintain a data security program that includes reasonable and appropriate administrative, physical, and technical safeguards to ensure the confidentiality, integrity, security, and availability of Customer Data (“Security Program”).The Security Program shall be consistent in all material respects with the standard practices within the industry and comply with the applicable standards and specifications of HIPAA Security Rule 45 CFR Parts 160 – 164, Subpart C, FERPA, and 42 CFR Part 2.
   2. Data Centers Data Backup. ContinuumCloud shall ensure that all Customer Data shall be maintained on secure servers located in at least two separate and distinct data centers physically located within the United States. ContinuumCloud will incrementally back up Customer Data on a daily basis and perform full backups weekly.
   3. Disaster Recovery. ContinuumCloud shall implement and maintain a commercially reasonable disaster recovery plan (“Disaster Recovery Plan”) consistent with industry standards to enable ContinuumCloud to resume operation of the Services, install the most recent backup copy of Customer Data, and enable Customer to resume operations within a reasonable period of time (not to exceed two (2) days). ContinuumCloud will test the effectiveness of its Disaster Recovery Plan periodically, but no less than annually.
   4. Secure Data Transmission. Communications or transfer of Customer Data will be over a secure connection utilizing encryption and shall comply, at a minimum, with applicable HIPAA rules, regulations, and requirements.
   5. Notification of Security Incidents. ContinuumCloud will make good faith efforts to notify Customer immediately, but in no event later than forty-eight (48) hours, after discovery of a security incident that has resulted in or may result in unauthorized access, use, disclosure, modification, or destruction of Customer Data. In addition, in the event PHI has been compromised, ContinuumCloud will notify Customer in accordance with all applicable notification requirements of the Business Associate Agreement and HIPAA.
   6. Audits. At least once annually ContinuumCloud will engage an independent third party to conduct an audit of its Security Program (“Security Audit”). ContinuumCloud will promptly correct any deficiencies and implement any process improvements recommended as a result of such Security Audit.
   7. Compliance with Privacy and Data Security Laws. ContinuumCloud will comply with applicable federal and state laws and regulations governing the confidentiality and security of Customer Data, including but not limited to, HIPAA, FERPA, and 42 CFR Part 2 (confidentiality of alcohol and drug abuse patient records). ContinuumCloud will enter into standard form agreements with the Customer, and subcontractors, where required, acceptable to both Parties, as necessary to comply with applicable legal requirements.
   8. CCPA. With respect to the California Consumer Privacy Act of 2018 (“CCPA”), ContinuumCloud is a Service Provider to Customer with respect to Personal Information. ContinuumCloud shall not (a) Sell Personal Information, or (b) retain, use, or disclose any Personal Information for any purpose other than for the specific purpose of providing the Services, including retaining, using, or disclosing the Personal Information for a Commercial Purpose. The terms “Commercial Purpose,” “Personal Information,” “Sell,” and “Service Provider,” shall have the meanings set forth in the CCPA. In accordance with the CCPA, the Company may collect, use, distribute, market and sell de-identified data derived from Customer Data provided such data cannot reasonably be used to identify any individual or household and complies with the HIPAA Safe Harbor methods for de-identification. The Company shall implement and maintain appropriate technical and organizational safeguards to prevent re-identification and shall not attempt to re-identify such data. De-identified data may be used for purposes including, but not limited to, analytics, benchmarking, research, and product development; provided, that such use or data (a) shall not include any Customer Data, and (b) shall not be able to identify Customer, any Authorized User, or any other individual.
8. Insurance

ContinuumCloud shall obtain and continuously maintain all forms and amounts of insurance coverage required by applicable federal, state, and local law, and such other insurance coverage as it deems reasonable and necessary, covering the actions of itself, its employees and its independent contractors and agents]. ContinuumCloud shall, at all times during the term of this agreement, maintain the following insurance coverage: (i) general business liability insurance with coverage limits of not less than $1,000,000 per occurrence and $3,000,000 annual aggregate, (ii) workers’ compensation insurance for ContinuumCloud employees equal to applicable statutory limits, (iii) employer’s liability insurance with coverage limits of not less than $1,000,000 per occurrence, (iv) cyber and errors and omissions insurance (privacy and security, media, and technology errors and omissions) with coverage limits of not less than $5,000,000 per occurrence and $5,000,000 annual aggregate, (v) product liability insurance with coverage limits of not less than $5,000,000 per occurrence and $5,000,000 annual aggregate, and (vi) a general liability umbrella policy with coverage limits of not less than $5,000,000 per occurrence and $5,000,000 annual aggregate. Such policies shall (a) name the Customer as an additional insured, (b) specify that the policy is primary insurance to any other insurance available to the additional insureds and that such insurance applies separately to each insured against whom claim is made or suit is brought, and (c) provide that the Customer shall be provided with thirty (30) days’ notice of nonrenewal or cancellation in accordance with the policy provisions, and 10 days’ notice for non-payment of premium. Should any of the required insurance be provided under a claims-made form, ContinuumCloud shall either maintain such coverage continuously throughout the Term and without lapse for a period of three (3) years beyond the expiration or sooner termination of this Agreement or purchase an extended reporting endorsement (“tail”) for the three (3) year period from expiration or termination of this Agreement. ContinuumCloud shall provide the Customer with a copy of the Insurance Certificate(s) upon execution of this Agreement and otherwise upon written request.

9. Intellectual Property Rights
   1. Ownership. The SaaS Services, all underlying software, and all improvements, enhancements, or modifications thereto, including all copies, portions, extracts, selections, arrangements, compilations, adaptations, modifications, and improvements thereof, and all derivative works of any of the foregoing are collectively defined as “ContinuumCloud Intellectual Property”. ContinuumCloud owns and retains all worldwide right, title, and interest in and to the ContinuumCloud Intellectual Property, and all intellectual property and proprietary rights in and related to any Implementation Services or Professional Services (collectively, “Services IP”). Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer.
   2. Third Party Software. The SaaS Services may utilize, include, or offer certain third-party or open-source software (“Third Party Software”) which may be subject to additional licensing terms. By entering into this Agreement and using the SaaS Services, Customer hereby accepts the applicable Third Party Software licensing terms provided with the Order Form, or as may be listed in the Terms of Service located at www.continuumcloud.com/customeragreements/, as applicable to the specific line item of Services listed on Customer Order Form.
   3. Feedback. Customer hereby grants to ContinuumCloud a non-exclusive, worldwide, perpetual right and license to use all evaluations, ideas, feedback, and suggestions made by Customer, including Authorized Users, relating to the SaaS Services, ContinuumCloud Intellectual Property or Services IP (collectively, “Feedback”).
10. Warranties and Disclaimers
    1. Limited Warranty. ContinuumCloud warrants that during any applicable Subscription Term (a) this Agreement will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) ContinuumCloud will not materially decrease the overall security of the SaaS Services, (c) the SaaS Services will perform materially in accordance with this Agreement, and (d) ContinuumCloud will not materially decrease the overall functionality of the SaaS Services.
    2. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 10.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND CONTINUUMCLOUD MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CONTINUUMCLOUD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN BE CORRECTED. CONTINUUMCLOUD MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD-PARTY TECHNOLOGY SERVICE OR HOSTING PROVIDERS AND ANY CLAIM ARISING FROM OR RELATING TO SUCH SERVICES SHALL BE SOLELY AGAINST SUCH SERVICE PROVIDER.
11. Term; Termination
    1. Term. Each Order Form will specify the Subscription Term, the Subscription Term Start Date, and the Subscription Term End Date. Subscription Terms and Renewal Terms will automatically renew for an additional 12-month term (“Renewal Term”) unless Customer provides written notice of its intent not to renew at least 60 days prior to the expiration of the then current Subscription Term or Renewal Term.
    2. Termination for Cause.
       1. Breach. Either Party may terminate this Agreement for cause if the other party commits a material breach of any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice specifying the nature of the breach in reasonable detail. A material breach includes, but is not limited to, failure to make timely payments, unauthorized use of the Services, violation of confidentiality obligations, or infringement of intellectual property rights. However, the Customer’s right to terminate for cause is subject to the following conditions: (i) the Customer must be current on all undisputed payments due under this Agreement at the time notice of termination is given; (ii) the Customer must provide ContinuumCloud with written notice of the alleged breach, including sufficient detail to allow ContinuumCloud to understand and address the issue; (iii) the Customer must allow ContinuumCloud the full thirty (30) day cure period to remedy the breach before termination becomes effective; and (iv) if the breach is capable of being cured but not within the 30-day period, and ContinuumCloud has commenced and is diligently pursuing a cure, the cure period may be reasonably extended. Termination under this section shall be without prejudice to any other rights or remedies available to the non-breaching party under this Agreement or applicable law.
       2. Insolvency. Either Party may terminate this Agreement, effective upon notice, should the other Party (1) admit in writing its inability to pay its debts generally as they become due; (2) make a general assignment for the benefit of creditors; (3) institute proceedings to be adjudicated in a voluntary bankruptcy, or consent to the filing of a petition of bankruptcy against it; (4) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (5) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (6) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such Party’s property or providing for the liquidation of such Party’s property or business affairs.
       3. Loss of Licensure. Either Party may terminate this Agreement, effective upon notice, should the other Party cease to possess all necessary licenses, registrations, or authorizations to carry on its business required by any Laws.
       4. Non-Payment. ContinuumCloud may suspend or terminate an Order Form, an SOW, or this Agreement if any charge owing by Customer under any Order Form or SOW is thirty (30) days or more overdue, and such failure continues more than ten (10) days after written notice.
    3. Refund of Payment Upon Termination. If an Order Form, SOW, or this Agreement is terminated by Customer in accordance with Section 11.2(a) above, ContinuumCloud will refund Customer a pro rata portion of any prepaid fees attributable to the remainder of the term of all terminated Order Forms or SOW’s after the effective date of termination. If an Order Form, SOW, or this Agreement is terminated by ContinuumCloud in accordance with Section 11.2 above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms and SOWs to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to ContinuumCloud for the period prior to the effective date of termination.
    4. Effect of Termination. Upon termination: (a) Customer will no longer have access to the Services; (b) ContinuumCloud will deliver to Customer an electronic copy, in an industry standard format, of all Customer Data within ten (10) business days; and (c) each Party will securely erase, destroy, or return to the other Party all Confidential Information in its possession or control within thirty (30) days.
    5. Survival. The Parties hereby agree that those provisions that by their nature are intended to survive the termination of an Order Form, SOW, or this Agreement shall survive such termination.
12. Confidentiality and Non-Solicitation
    1. Definition of Confidential Information. “Confidential Information” means any and all non-public information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, or electronic, that is designated confidential or proprietary or which a reasonable person should understand is confidential or proprietary. Confidential Information includes but is not limited to the MSA, all Order Forms, all SOWs, the Services, or information related to either Party’s technology, products, know-how, trade secrets, customers, pricing information, finances, or other business affairs.
    2. Nondisclosure Obligations. The Receiving Party will not use the Confidential Information of the Disclosing Party for any purpose other than as necessary to fulfill its obligations or to exercise its rights under this Agreement (the “Purpose”). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party; provided that the Receiving Party may disclose Confidential Information to its partners, officers, directors, employees, contractors, affiliates, agents, advisors, or representatives who need access to such Confidential Information for the Purpose and who are subject to written confidentiality obligations at least as stringent as the obligations set forth in the this Agreement. Each Party accepts responsibility for the actions of its partners, officers, directors, employees, contractors, affiliates, agents, advisors, and representatives, and will protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder and will cooperate with any reasonable request of the Disclosing Party in enforcing its rights.
    3. Exceptions to Confidential Information. Confidential Information does not include information which: (i) is known by the Receiving Party prior to receipt from the Disclosing Party, without any obligation of confidentiality; (ii) becomes known to the Receiving Party without confidentiality obligations directly or indirectly from a source that, to the Receiving Party’s reasonable knowledge, does not owe an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of the this Agreement; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process, or government regulation, but only after it notifies the Disclosing Party (if legally permissible) to enable the Disclosing Party to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.
    4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
    5. Non-Solicitation of Personnel. The Parties agrees that, during the term of this Agreement and for a period of twelve (12) months following its termination or expiration, neither Party will, directly or indirectly, solicit for employment or engagement, or hire or engage, any employee, contractor, or consultant of the other Party who was involved in the provision of services under this Agreement, without the prior written consent of the other Party. This restriction shall not apply to individuals who respond to a general advertisement or job posting not specifically targeted at either Parties personnel.
13. Indemnification
    1. Infringement of Intellectual Property Rights.
       1. IP Claims. ContinuumCloud, at its expense, will defend Customer and its affiliates and their respective officers, directors, and employees (“Customer Indemnified Parties”) from and against all actions, proceedings, claims, and demands by a third party (“Third-Party Claim”) alleging that the Services infringe any copyright or misappropriate any trade secret of such third party, and will pay all damages, costs, and expenses, including attorneys’ fees and costs (whether by settlement or final award) incurred by the Customer Indemnified Parties directly from any such Third-Party Claim. Notwithstanding anything to the contrary, the foregoing indemnity obligations will not apply with respect to a claim of infringement that arises out of (i) infringing or illegal Customer Data; (ii) use of the Services in combination with any software, hardware, network, technology, or system not supplied by ContinuumCloud where the alleged infringement relates to such combination; (iii) any modification or alteration of the Services other than by ContinuumCloud; (iv) Customer’s violation of applicable Law, rules, or regulations; (v) use of the Services other than as authorized by this Agreement; or (vi) failure to implement an Update that ContinuumCloud has provided where such implementation would avoid infringement (collectively, the “Exclusions”).
       2. Mitigation. If any Third-Party Claim which ContinuumCloud is obligated to defend has occurred, or in ContinuumCloud’s determination is likely to occur, ContinuumCloud may, at its option (i) obtain for Customer the right to continue using the Services; (ii) replace or modify the Services to avoid such claim; or (iii) if such remedies are not reasonably available, terminate Customer’s license and provide Customer with a pro rata refund of any unused Fees.
       3. Procedures. ContinuumCloud’s obligations under this Section are conditioned upon (i) being promptly notified in writing of any Third-Party Claim (except that any failure to so notify will not relieve ContinuumCloud of its obligations under this Section unless such failure materially prejudices ContinuumCloud’s ability to defend the Third-Party Claim), (ii) having the sole and exclusive right to control the defense and settlement of the Third-Party Claim (provided that ContinuumCloud may not settle any Third-Party Claim unless it unconditionally releases Customer Indemnified Parties of all liability), and (iii) the Customer Indemnified Parties providing all reasonable assistance (at ContinuumCloud’s expense and reasonable request) in the defense of such Third-Party Claim. In no event will a Customer Indemnified Party settle any Third-Party Claim without ContinuumCloud’s prior written approval. The Customer Indemnified Party may, at its own expense, engage separate counsel to advise it regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to ContinuumCloud’s right to control the defense and settlement.
       4. Sole Remedy. THE TERMS OF THIS SECTION STATE CONTINUUMCLOUD’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF CONTINUUMCLOUD WITH RESPECT THERETO.
    2. Customer Indemnity. Customer will, at its expense, defend ContinuumCloud, its affiliates, and licensors, and their respective officers, directors, and employees (“ContinuumCloud Indemnified Parties”)from and against any and all Third-Party Claims which arise out of or relate to: (i) Customer Data; (ii) the Exclusions; or (iii) a material breach of the Agreement by Customer or its Authorized Users. Customer will pay all damages, costs, and expenses, including attorneys’ fees and costs (whether by settlement or awarded by a final judicial judgment) incurred by the ContinuumCloud Indemnified Parties from any indemnified Third-Party Claim. Customer’s obligations under this Section are conditioned upon having the sole and exclusive right to control the defense and settlement of the Third-Party Claim (provided that Customer shall not settle any indemnified Third-Party Claim unless it unconditionally releases the ContinuumCloud Indemnified Parties of all liability). In no event will a ContinuumCloud Indemnified Party settle any indemnified Third-Party Claim without Customer’s prior written approval. The ContinuumCloud Indemnified Party may, at its own expense, engage separate counsel to advise it regarding an indemnified Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to Customer’s right to control the defense and settlement.
14. Limitation of Liability
    1. Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING WITHOUT LIMITATION LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
    2. Amount of Damages. WITH THE EXCEPTION OF A PARTY’S INDEMNIFICATION OBLIGATIONS, CONTINUUMCLOUD’S MAXIMUM LIABILITY TO CUSTOMER WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO CONTINUUMCLOUD DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; PROVIDED, HOWEVER, THAT NOTHING IN THE AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR FRAUD, GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FOR DEATH OR PERSONAL INJURY.
15. General Provision
    1. Governing Law; Dispute Resolution. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without reference to conflicts of laws principles. Both Parties expressly and irrevocably agree that all claims and disputes arising under or relating to this Agreement or the Services are to be settled by binding arbitration in the State of Georgia or another location mutually agreeable to the Parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
    2. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    3. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision in any other instance.
    4. Assignment. Neither Party will assign, subcontract, delegate, or otherwise transfer their rights or obligations under this Agreement without obtaining the prior written consent of the other Party; provided, however, this Agreement shall continue in full force and effect in connection with any merger, acquisition, reorganization, or sale of all or substantially all of a Party’s assets, or other operation of law. This Agreement will be binding upon the Parties and their respective successors and permitted assigns.
    5. Force Majeure. Any delay in the performance of any duties or obligations of either Party will not be considered a breach if such delay is caused by a labor dispute, fire, earthquake, flood, pandemic, governmental order, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts under the circumstances to notify the other Party of the cause of such delay and to resume performance as soon as possible. Notwithstanding the foregoing, payment obligations shall not be excused unless the affected Party’s ability to make or receive payments is rendered impossible due to the force majeure event.
    6. Change Management. ContinuumCloud may update or modify the terms of this Master Services Agreement or the associated Terms of Service from time to time to reflect changes in applicable laws, regulations, business practices, or to improve the clarity or functionality of the Agreement. Any such changes will become effective thirty (30) days after notice is provided to Customer, which may be delivered by email, through the SaaS platform, or by posting the updated terms at www.continuumcloud.com/customeragreements/. Continued use of the Services after the effective date of any changes constitutes acceptance of the updated terms.

    If Customer reasonably believes that a change materially and adversely affects its rights under this Agreement, Customer may notify ContinuumCloud in writing within the thirty (30) day notice period. Upon receipt of such notice, the Parties will work in good faith to resolve the concern. If the Parties are unable to reach a mutually acceptable resolution within thirty (30) days of such notice, the Customer will remain governed by the previous Master Services Agreement or associated Terms of Service until the end of their current term. Upon renewal, the updated Master Services Agreement or associated Terms of Service will apply.

    7. Notices. All general notices required or permitted under the Agreement may be delivered in writing or by emailing the other Party. Any notices relating to breaches or termination must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service, to the address for a Party contained in the relevant Order Form or SOW, or by email to legal@continuumcloud.com.
    8. Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes all prior negotiations, discussions, representations, understandings, undertakings, or agreements (whether oral or written and whether express or implied) between the Parties with respect to such subject matters. No modification of or amendment of this Agreement will be effective unless in writing and signed by both Parties.

These Terms of Service (“TOS”) are supplemental terms and conditions of Customer’s access to and use of the Welligent Platform and the services listed below, part of ContinuumCloud’s Services. By signing an Order Form or Statement of Work that references the Master Services Agreement (“MSA”) and this Terms of Service, or by using any ContinuumCloud Services, Customer accepts the terms and conditions of the Master Services Agreement and any Terms of Service (located at www.continuumcloud.com/customeragreements/)) associated with the services referenced in the Order Form or SOW executed by Customer. This TOS, the MSA, and any executed Order Forms and/or SOWs are collectively referred to herein as this “Agreement”. Capitalized terms have the definitions set forth in the MSA or herein. To the extent that a conflict arises between the terms and conditions of this TOS and the terms of the MSA, the terms and conditions of this TOS will govern.

1. Customer Support Services
   1. Days and Hours
      Monday – Friday from 8:30am to 5:00pm ET (excluding holidays)
   2. Methods of Contact
      Web Portal: community.welligent.com
      Email: ehrsupport@continuumcloud.com
      Phone: (888) 871-1631

These Terms of Service (“TOS”) are supplemental terms and conditions of Customer’s access to and use of the DATIS e3 Platform, a service offering and part of ContinuumCloud’s Services. By signing an Order Form or Statement of Work that references the Master Services Agreement (“MSA”) and this Terms of Service, or by using any ContinuumCloud Services, Customer accepts the terms and conditions of the Master Services Agreement and any Terms of Service (located at www.continuumcloud.com/customeragreements/)) associated with the services referenced in the Order Form or SOW executed by Customer. This TOS, the MSA, and any executed Order Forms and/or SOWs are collectively referred to herein as this “Agreement”. Capitalized terms have the definitions set forth in the MSA or herein. To the extent that a conflict arises between the terms and conditions of this TOS and the terms of the MSA, the terms and conditions of this TOS will govern.

1. Payroll Services. Customer Obligations.
   1. Customer acknowledges that ContinuumCloud exercises no control over Customer’s human resource practices or Customer decisions regarding employment, promotion, advancement, termination, notification, or compensation of any employee. ContinuumCloud is not responsible for errors, wage and hour violations, employment discrimination, garnishment calculations or other employment policies which may violate applicable law based on the Customer Data. It is the Customer’s responsibility to review processed payroll and other information to promptly identify any errors and notify ContinuumCloud of such errors. Customer shall comply with all applicable laws with respect to its employment practices and payment of wages.
   2. Customer acknowledges that ContinuumCloud does not have a direct relationship with Customer’s employees and that Customer is responsible for all contact, questions, Customer Data updates and collection, with and from Customer’s employees. In performing any payroll services, ContuinuumCloud will rely on the information furnished by Customer and its Authorized Users, and ContuinuumCloud is not responsible or liable for any errors resulting from such reliance. Customer is fully responsible for the accuracy of all information Customer provides, submits, and/or approves (whether provided directly or through Authorized Representatives), and Customer is solely responsible for any Third-Party Claims, including but not limited to IRS penalties and/or interest, and other penalties and/or interest arising from the failure to timely provide and maintain accurate and complete payroll information at all times. If Customer elects to file its own taxes, ContinuumCloud shall not be liable for failure to meet applicable deadlines or have any responsibility for associated fees, fines or penalties.
   3. Any payroll services provided by ContinuumCloud will be based on and are dependent upon information provided to ContinuumCloud by Customer (including proof of federal, state, and local tax identification numbers). Failure to provide the required information may adversely impact ContinuumCloud’s ability to perform the Services. Customer is also responsible for: (i) depositing any federal, state, and local withholding liabilities incurred prior to subscribing for the Services; (ii) submitting any payroll returns to tax agencies that were due for payroll tax liabilities incurred prior to subscribing for the Services. Customer is also responsible for: (i) depositing any federal, state, and local withholding liabilities incurred subsequent to terminating any Services; (ii) submitting any payroll returns to tax agencies that were due for payroll tax liabilities incurred subsequent to terminating any Services.
   4. In performing the Services, Customer acknowledges and agrees that any information that ContinuumCloud provides in connection with the payroll services is for informational purposes only and should not be construed by Customer as legal, tax, or accounting advice.
   5. ContinuumCloud may commingle Customer’s funds with similar funds from other customers and with similar ContinuumCloud and ContinuumCloud-administered funds. ContinuumCloud utilizes a funds control system that maintains general ledger entries by customer and/or by jurisdiction. All amounts earned on such funds while held by ContinuumCloud will be for the sole account of ContinuumCloud.
   6. Customer will maintain in the applicable bank account linked to the Services (the “Bank Account”), two days prior to the applicable payroll direct deposit date and as of the applicable payroll deposit date, payroll tax deposit date, or other settlement or due date and time, immediately available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”). If Customer’s account is not set up for automatic withdrawal, Customer shall initiate a wire for the Amounts Due to ContinuumCloud at least two (2) banking days prior to the applicable payroll deposit date. Failure to fully fund or wire the total Amounts Due at least two (2) banking days prior the applicable payroll deposit date absolves ContinuumCloud of any and all liabilities related to the applicable payroll deposit date arising from such failure.
2. Fees, Invoicing, and Payment Terms.
   1. Monthly Fees are calculated by multiplying i) the greater of the actual number of active employees during the month period, or eighty percent (80%) of the Units as detailed on an Order Form rounded up to a whole number (“Minimum Employee Count”); by ii) the Unit Price as detailed on the Order Form, subject to annual price increase governed by this Agreement.
   2. Monthly Fees will be invoiced on the 1st of the month following each calendar month during the Subscription Term, and collected via ACH direct debit on the 8th banking day of the month.
   3. Customer will provide ContinuumCloud with valid and up-to-date ACH direct debit information (“Payment Method”), and Customer authorizes ContinuumCloud to charge such Payment Method for all Services listed in the Order Form or SOW for the initial subscription term and any renewal subscription term(s) as set forth therein. Manual payments or alternative payment methods are not accepted for use with the DATISe3 Platform. Customer is responsible for providing complete and accurate billing and contact information to ContinuumCloud and notifying ContinuumCloud of any changes to such information.
3. Customer Support Services
   1. Days and Hours
      Monday – Friday from 8:30am to 6:30pm ET (excluding holidays)
   2. Methods of Contact
      Web Portal: community.datis.com
      Phone: (888) 871-1631

These Terms of Service (“TOS”) are supplemental terms and conditions of Customer’s access to and use of the CaredFor Platform, a service offering and part of ContinuumCloud’s Services. By signing an Order Form or Statement of Work that references the Master Services Agreement (“MSA”) and this Terms of Service, or by using any ContinuumCloud Services, Customer accepts the terms and conditions of the Master Services Agreement and any Terms of Service (located at www.continuumcloud.com/customeragreements/) associated with the services referenced in the Order Form or SOW executed by Customer. This TOS, the MSA, and any executed Order Forms and/or SOWs are collectively referred to herein as this “Agreement”. Capitalized terms have the definitions set forth in the MSA or herein. To the extent that a conflict arises between the terms and conditions of this TOS and the terms of the MSA, the terms and conditions of this TOS will govern.

1. CaredFor Users Subscription.
   1. Yearly Active Users: The users subscription is based on Yearly Active Users (YAU), defined as the number of users that have recorded at least one login in 365 days. A user’s first login is counted on their first session after creating an account.
   2. YAU Review: ContinuumCloud reserves the right to track the YAU count and review with the customer every six (6) months. ContinuumCloud may increase the YAU at each review should the count be tracking higher than 10% of the initial order YAU, and thereafter adjust the subscription fees based on the increase in YAU. Customer agrees to pay the additional subscription fees for YAU increases based on this review process.
2. Customer Support Services
   1. Days and Hours
      Monday – Friday from 8:30am to 5pm ET (excluding holidays)
   2. Methods of Contact
      In application request for support is accessed via the main menu in the CaredFor Platform.
      Email: pesupport@continuumcloud.com
      Phone: (888) 871-1631

This Terms of Service (“ToS”) are supplemental terms and conditions governing Customer’s access to and use of the Software Services (as defined below), a service offering and part of ContinuumCloud’s Services. The Software Services are provided by Clinical Notes AI, Inc. (dba Clinically AI), a Delaware corporation with its principal place of business at 17605 Via Del Campo, San Diego, California 92127 (“Company”). By signing an Order Form or Statement of Work that references the Master Services Agreement (“MSA”) and this ToS, or by using any of the Software Services, Customer accepts the terms and conditions of the MSA and any Terms of Service (located at www.continuumcloud.com/customeragreements/) associated with the services referenced in the Order Form or SOW executed by Customer. This ToS, the MSA, and any executed Order Forms and/or SOWs are collectively referred to herein as this “Agreement.” Capitalized terms have the definitions set forth in the MSA or herein. To the extent that a conflict arises between the terms and conditions of this ToS and the terms of the MSA, the terms and conditions of this ToS will govern. By executing an Order Form referencing this ToS, Customer represents that it has had the opportunity to review these terms and agrees to be bound by them.

1. THE SOFTWARE SERVICES
   1. Service Description. The “Software Services” means the Company’s artificial intelligence–powered clinical documentation and workflow software services, including all related features, integrations, updates, and documentation (“Documentation”), made available to Customer as part of ContinuumCloud’s Services. The Software Services are designed to assist licensed healthcare professionals with clinical documentation, note generation, workflow automation, and related administrative tasks within the healthcare setting. Additional information is available at www.clinicalnotes.ai.
   2. Integration with ContinuumCloud. The Software Services are made available to Customer as part of Customer’s ContinuumCloud subscription. Customer’s billing and commercial relationship for the Software Services is administered by ContinuumCloud under the MSA and applicable Order Forms. Company is directly responsible for all aspects of service delivery, including implementation, system configuration, onboarding and training of Authorized Users, ongoing technical support, and all service level and other obligations set forth in this ToS. For all service delivery, implementation, support, and technical matters relating to the Software Services, Customer’s primary point of contact is Company. Company and ContinuumCloud have entered into a separate commercial arrangement governing the distribution of the Software Services.
   3. Order of Precedence. In the event of any conflict between this ToS and the MSA with respect to the Software Services, this ToS shall control. The Business Associate Agreement (“BAA”) executed between Company and Customer shall control over both this ToS and the MSA with respect to Protected Health Information, as defined under HIPAA.
2. LICENSE AND ACCESS
   1. License Grant. Subject to the terms and conditions of this Agreement and Customer’s timely payment of all applicable Fees, Company grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Software Services solely for Customer’s internal business purposes during the term set forth in the applicable Order Form or as subsequently established pursuant to Section 12.2 (the “Subscription Term”). Upon receipt of a duly executed Order Form, Company will provision Authorized User credentials within twenty-four (24) hours. Such provisioning shall constitute activation of the system and enable the Authorized User’s access to and use of the Software Services licenses specified in the applicable Order Form.
   2. Authorized Users. Customer may permit its employees and authorized contractors (“Authorized Users”) to access and use the Software Services in accordance with this Agreement. Customer is responsible for all acts and omissions of its Authorized Users in connection with the Software Services. Customer shall ensure that each Authorized User completes any required orientation or acknowledgment presented within the Software Services prior to first use.
   3. Restrictions. Customer will not, and will not permit any Authorized User or other party to:
      1. sublicense, sell, resell, transfer, distribute, or otherwise make the Software Services available to any third party other than Authorized Users;
      2. reverse engineer, decompile, disassemble, or attempt to derive or determine the source code, algorithms, or underlying ideas of the Software Services;
      3. modify, copy, or create derivative works based on the Software Services or its Documentation;
      4. access or use the Software Services to build, train, benchmark, or improve any artificial intelligence model, competing product, or competing service;
      5. use the Software Services in any manner inconsistent with applicable law or this Agreement;
      6. remove, obscure, or alter any proprietary notices or labels on the Software Services; or
      7. use the Software Services in connection with any time-critical or mission-critical function for which software failure could result in direct harm to individuals.
3. CLINICAL RESPONSIBILITY
   1. AI Output Not a Substitute for Clinical Judgment. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE SERVICES USE ARTIFICIAL INTELLIGENCE TO ASSIST WITH CLINICAL DOCUMENTATION AND WORKFLOW AND THAT ALL AI-GENERATED OUTPUTS, SUGGESTIONS, SUMMARIES, AND CLINICAL NOTES (“AI OUTPUT”) ARE TOOLS TO SUPPORT, AND NOT REPLACE, THE INDEPENDENT CLINICAL JUDGMENT OF LICENSED HEALTHCARE PROFESSIONALS. COMPANY DOES NOT PRACTICE MEDICINE, DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND DOES NOT INTERFERE WITH THE PRACTICE OF MEDICINE OR ANY OTHER LICENSED PROFESSION.
   2. Clinician Responsibility. Customer accepts full responsibility for ensuring that all AI Output is reviewed, verified, and approved by a qualified, licensed clinical professional prior to inclusion in any patient record, submission to any payer, or use in any clinical decision. Customer acknowledges that:
      1. AI Output may contain errors, omissions, or inaccuracies and must be reviewed by a licensed clinician before use;
      2. the clinical professional reviewing and finalizing any documentation generated using the Software Services is solely responsible for the accuracy, completeness, and appropriateness of that documentation;
      3. the Software Services do not guarantee that AI Output will satisfy any specific clinical, regulatory, or payer documentation requirement;
      4. Customer is responsible for providing adequate training to all Authorized Users on the capabilities and limitations of the Software Services prior to clinical use; and
      5. Customer shall implement and maintain electronic health record (“EHR”) reconciliation procedures to verify that AI-generated notes and documentation are accurate and complete before finalization in the EHR.
   3. Emergency Situations. THE SOFTWARE SERVICES ARE NOT DESIGNED, TESTED, OR INTENDED FOR USE IN MEDICAL EMERGENCIES OR OTHER TIME-CRITICAL CLINICAL SITUATIONS. CUSTOMER AGREES THAT THE SOFTWARE SERVICES WILL NOT BE USED AS A PRIMARY OR SOLE CLINICAL DECISION SUPPORT TOOL IN EMERGENCY SITUATIONS. CUSTOMER MUST ENSURE THAT ALL AUTHORIZED USERS RETAIN THE ABILITY TO OVERRIDE, DISREGARD, OR BYPASS AI OUTPUT AT ANY TIME IN THE EXERCISE OF THEIR INDEPENDENT CLINICAL JUDGMENT.
   4. Regulatory Compliance. Customer is solely responsible for ensuring that its use of the Software Services complies with all applicable federal, state, and local laws and regulations governing the delivery of healthcare services, clinical documentation, medical recordkeeping, patient privacy, telehealth, and the use of artificial intelligence in clinical settings. Company makes no representation or warranty that the Software Services satisfy any specific federal, state, or local jurisdictional requirement for the provision of medical services or clinical documentation, except as expressly set forth in the applicable product Documentation for specific features of the Software Services.
4. CUSTOMER DATA AND PRIVACY
   1. Customer Data Ownership. All right, title, and interest in Customer Data belongs to and is retained solely by Customer. “Customer Data” means all data, records, and information submitted to, processed by, or generated from the Software Services by Customer or its Authorized Users, including Protected Health Information. Nothing in this Agreement transfers any rights in Customer Data to Company except as expressly set forth herein.
   2. License to Use Customer Data. Customer grants Company a limited, non-exclusive, non-transferable license to access, process, and use Customer Data solely as necessary to provide the Software Services and fulfill Company’s obligations under this Agreement and the BAA.
   3. De-Identified and Aggregated Data. Notwithstanding Section 4.1, Company may generate, use, and commercialize De-Identified and Aggregated Data derived from Customer Data. “De-Identified and Aggregated Data” means data that (a) has been de-identified in accordance with the HIPAA Safe Harbor method (45 C.F.R. § 164.514(b)) or Expert Determination method (45 C.F.R. § 164.514(b)(1)) such that it cannot reasonably identify Customer, any Authorized User, or any individual, and (b) has been combined or aggregated with data from other sources. Company shall: (i) implement and maintain appropriate technical and organizational safeguards to prevent re-identification; (ii) not attempt to re-identify De-Identified and Aggregated Data; and (iii) not use De-Identified and Aggregated Data in any manner that violates applicable law. De-Identified and Aggregated Data may be used for analytics, benchmarking, research, product development, and other lawful commercial purposes.
   4. Business Associate Agreement. The Software Services involve access to and processing of Protected Health Information. The Company’s standard BAA is available at www.clinicalnotes.ai. Customer is required to execute the BAA prior to first accessing the Software Services or providing any PHI to Company. Company will provide the BAA for execution as part of the Order Form process. The BAA is incorporated into this Agreement by reference upon execution. Company may withhold or suspend access to the Software Services until a fully executed BAA is in place. In the event of a conflict between this ToS and the BAA with respect to Protected Health Information, the BAA shall control.
   5. CCPA. With respect to the California Consumer Privacy Act (“CCPA”), Company is a Service Provider to Customer with respect to Personal Information. Company shall not (a) Sell Personal Information, or (b) retain, use, or disclose any Personal Information for any purpose other than the specific purpose of providing the Software Services, including retaining, using, or disclosing Personal Information for a Commercial Purpose outside the direct business relationship between Company and Customer. The terms “Commercial Purpose,” “Personal Information,” “Sell,” and “Service Provider” have the meanings set forth in the CCPA.
   6. Publicity. Customer grants Company a limited, non-exclusive, non-transferable, royalty-free license to use Customer’s name and logo solely to identify Customer as a client in Company’s marketing and promotional materials. Company shall obtain Customer’s prior written approval before publishing any case study, testimonial, or press release that quotes or specifically attributes content to Customer. Customer may revoke general name/logo use at any time by written notice to Company, in which case Company will cease such use within thirty (30) days.
5. DATA SECURITY
   1. Security Program. Company will maintain a comprehensive data security program that includes administrative, physical, and technical safeguards designed to ensure the confidentiality, integrity, security, and availability of Customer Data (“Security Program”). The Security Program shall comply with applicable HIPAA Security Rule requirements (45 C.F.R. Parts 160–164, Subpart C) and be consistent with industry-standard practices for healthcare software services. Without limiting the foregoing, the Security Program includes encryption of Customer Data using AES-256 or equivalent at rest and TLS 1.2 or higher in transit, multi-factor authentication for administrative and remote access to systems processing Customer Data, annual security awareness training for personnel with access to Customer Data, and annual testing of Company’s incident response plan. Company shall not materially decrease the overall security of the Software Services during the Subscription Term.
   2. Data Centers and Backup. Company shall ensure that all Customer Data is stored and processed on servers located within the United States, using commercially available cloud infrastructure that provides geographic redundancy and high availability in accordance with the provider’s enterprise-grade service commitments.
   3. Breach Notification. Company will notify Customer within seventy-two (72) hours of discovering a security incident that has resulted in, or may reasonably result in, unauthorized access to, use of, or disclosure of Customer Data. Such notification shall include, to the extent known at the time: (a) a description of the nature of the incident; (b) the categories of Customer Data affected; (c) measures taken or proposed to address the incident; and (d) a designated contact for further information. Company shall provide prompt supplemental notice as additional information becomes available. Notification under this Section is in addition to, and does not replace, any PHI breach notification obligations under the BAA.
   4. Security Audit. Company will conduct formal information security risk assessments and network penetration tests at least bi-annually. Company will also engage an independent third party to conduct a security audit (SOC 2 Type II or equivalent) no less than annually. Company will provide Customer with a summary of audit findings upon written request, subject to reasonable confidentiality protections. Company will promptly remediate any material deficiencies identified.
6. INTELLECTUAL PROPERTY
   1. Company Ownership. The Software Services, all underlying software, artificial intelligence models, training data, algorithms, Documentation, and all improvements, enhancements, modifications, and derivative works thereof are and remain the sole and exclusive property of Company (“Company IP”). This Agreement does not transfer any ownership interest in any Company IP to Customer. Customer’s rights are limited to the license expressly granted in Section 2.1.
   2. Feedback License. Customer hereby grants Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use any feedback, suggestions, ideas, or evaluations provided by Customer or its Authorized Users regarding the Software Services (“Feedback”) for any purpose, including product development and improvement, without obligation of compensation or attribution.
   3. Third-Party Components and Services. The Software Services may incorporate third-party or open-source software components, which are subject to their respective license terms. Company will make a list of material third-party components available to Customer upon written request. The Software Services also rely on or integrate with third-party service providers, including cloud infrastructure providers, artificial intelligence model providers, and EHR systems (“Third-Party Services”). Company does not control Third-Party Services and is not responsible for their availability, performance, accuracy, or security. Company will not be liable for any failure, interruption, degradation, or unavailability of the Software Services to the extent caused by a Third-Party Service. Company will use commercially reasonable efforts to select reputable Third-Party Service providers and to notify Customer of any material Third-Party Service disruption that affects the Software Services.
7. SERVICE LEVEL COMMITMENT
   1. Uptime Target. During the Subscription Term, Company commits to providing 99.5% availability of the Software Services per calendar month, excluding scheduled and emergency maintenance (“Service Availability”). Service Availability is calculated as: ((total minutes in month − Unplanned Downtime) ÷ total minutes in month) × 100. “Unplanned Downtime” means any period during which the Software Services are not reasonably accessible, excluding maintenance and downtime caused by Customer’s or a third party’s equipment, software, or services outside of Company’s direct control.
   2. Maintenance. Scheduled maintenance is communicated to Customer by email or through the platform at least forty-eight (48) hours in advance and does not count as Unplanned Downtime. Company may take the Software Services offline for emergency maintenance (“Emergency Maintenance”) to address critical security vulnerabilities, stability issues, or regulatory compliance requirements; Company will notify Customer as promptly as practicable. Emergency Maintenance outside of “Off-Peak Hours” (10:00 PM to 6:00 AM Customer’s local time, Monday through Friday, and all day Saturday and Sunday) will be minimized to the extent operationally feasible.
   3. Response Times. Company will respond to and use commercially reasonable efforts to resolve reported defects in accordance with the following priority matrix:
      

      Priority	Description	Acknowledgment	Response Target	Resolution Target
      P1	Service Outage — Software Services are not reasonably accessible	1 hour	4 business hours	24 hours
      P2	Major Function Impaired — key feature does not work; no reasonable workaround	4 business hours	1 business day	Next release or patch
      P3	Minor Issue — function impaired but workaround exists	1 business day	3 business days	30 days

   4. Service Credits. If Service Availability falls below 99.5% in any calendar month and Customer was negatively impacted, Company will provide, as Customer’s sole and exclusive remedy for that failure, a Service Credit applied to Customer’s next invoice as follows: (a) less than 99.5% and at or above 99.0%: credit equal to 5% of the monthly fee for the Software Services; (b) below 99.0%: credit equal to 10% of the monthly fee; provided, however, that the Total Service Credits issued in any calendar month shall not exceed 25% of the monthly fee for the Software Services. To receive a Service Credit, Customer must submit a written request to Company within thirty (30) days of the end of the affected month with supporting detail. No Service Credit will be issued if Customer’s account is past due. Service Credits do not apply to downtime resulting from Customer’s acts, omissions, or third-party services outside Company’s control.
   5. Suspension and Discontinuation. Company reserves the right to suspend or discontinue the Software Services, or any feature or component thereof, at any time (a) to comply with applicable law or regulatory requirements, (b) to address a material security vulnerability or risk to Company’s systems or other customers, or (c) upon at least ninety (90) days’ prior written notice for any other reason. In the event of a planned discontinuation, Company will use commercially reasonable efforts to provide Customer with an opportunity to export Customer Data prior to the effective date.
8. WARRANTIES AND DISCLAIMERS
   1. Limited Warranty. Company warrants that during the Subscription Term: (a) this Agreement accurately describes the administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data; (b) Company will not materially decrease the overall security of the Software Services; (c) the Software Services will perform materially in accordance with the applicable Documentation; and (d) Company will not materially decrease the overall functionality of the Software Services without written notice to Customer.
   2. Exclusive Remedy. If Company breaches the limited warranty in Section 8.1, Customer’s sole and exclusive remedy is for Company to use commercially reasonable efforts to correct the non-conformity within thirty (30) days of receiving written notice describing the issue in reasonable detail. Nothing in this Section limits either party’s right to terminate for material breach under Section 11.2.
   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, THE SOFTWARE SERVICES AND ALL RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR COURSE OF DEALING. COMPANY DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS CAN BE CORRECTED, OR THAT AI OUTPUT WILL BE ACCURATE, COMPLETE, OR SUITABLE FOR ANY PARTICULAR CLINICAL PURPOSE.
   4. Medical Practice Disclaimer. COMPANY DOES NOT PRACTICE MEDICINE, PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, OR ENGAGE IN THE PRACTICE OF ANY OTHER LICENSED HEALTHCARE PROFESSION. THE SOFTWARE SERVICES ARE A TECHNOLOGY PLATFORM DESIGNED TO ASSIST LICENSED HEALTHCARE PROFESSIONALS WITH CLINICAL DOCUMENTATION AND WORKFLOW TASKS. COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT AI OUTPUT GENERATED BY THE SOFTWARE SERVICES WILL MEET ANY STATE OR FEDERAL CLINICAL DOCUMENTATION REQUIREMENT OR STANDARD OF CARE.
9. LIMITATION OF LIABILITY
   1. Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS INTERRUPTION, OR LOSS OR CORRUPTION OF DATA (EXCEPT TO THE EXTENT RESULTING FROM A PARTY’S BREACH OF ITS DATA SECURITY OR PRIVACY OBLIGATIONS UNDER THIS AGREEMENT), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. General Liability Cap. EXCEPT AS SET FORTH IN SECTION 9.3, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE SERVICES WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SOFTWARE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR THE AVOIDANCE OF DOUBT
   3. Special Liability Cap. THE LIMITATION SET FORTH IN SECTION 9.2 WILL NOT APPLY TO THE FOLLOWING, FOR WHICH EACH PARTY’S TOTAL AGGREGATE LIABILITY WILL NOT THE GREATER OF (A) TWO (2) TIMES THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SOFTWARE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) THE AMOUNTS RECOVERABLE UNDER COMPANY’S APPLICABLE CYBER LIABILITY INSURANCE POLICY: (a) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (b) COMPANY’S BREACH OF ITS SECURITY AND PRIVACY OBLIGATIONS UNDER AN APPLICABLE BUSINESS ASSOCIATE AGREEMENT; (c) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.
   4. Unlimited Liability. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR FRAUD OR WILLFUL MISCONDUCT.
   5. Allocation of Risk. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS SECTION 9 AND THAT THIS SECTION 9 IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
   6. Insurance Alignment. Nothing in this Agreement requires Company to obtain or maintain insurance coverage in excess of commercially reasonable limits for companies of similar size and risk profile.
10. INDEMNIFICATION
    1. By Company.
       1. IP Indemnity. Company will, at its expense, defend Customer and its affiliates and their respective officers, directors, and employees (“Customer Indemnified Parties”) from and against any third-party claim alleging that the Software Services, as provided by Company and used by Customer in accordance with this Agreement, directly infringe a United States copyright, patent, trademark, or misappropriate a trade secret, and will pay damages finally awarded or amounts agreed in settlement. Company’s obligations under this Section 10.1(a) are conditioned upon Customer promptly ceasing use of the allegedly infringing Software Services upon notice and complying with Company’s reasonable mitigation instructions.
       2. BAA Indemnity. Company will defend and indemnify Customer Indemnified Parties from and against third-party claims to the extent directly caused by Company’s material breach of its obligations under an applicable Business Associate Agreement to the extent directly caused by Company’s material breach. THIS SECTION 10.1(b) STATES COMPANY’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS ARISING FROM COMPANY’S BREACH OF AN APPLICABLE BUSINESS ASSOCIATE AGREEMENT.
       3. Exclusions. Company’s obligations under this Section 10.1 do not apply to claims arising from: (i) Customer Data, customer prompts, or other materials provided by Customer or Authorized Users; (ii) AI Output or the use of AI Output, except to the extent the alleged infringement is caused solely by Company Materials and not by Customer Data, prompts, or instructions; (iii) use of the Software Services in combination with software, hardware, systems, or data not provided by Company, where the alleged infringement relates to such combination; (iv) modification of the Software Services other than by Company; (v) use of the Software Services other than as authorized by this Agreement or the Documentation; (vi) failure to implement Updates made available by Company; (vii) clinical decisions, medical judgments, documentation determinations, coding decisions, reimbursement submissions, or other professional determinations made by Customer or its personnel; or (viii) Customer’s violation of applicable law.
       4. Mitigation. If the Software Services become, or in Company’s reasonable determination are likely to become, the subject of a claim described in Section 10.1(a), Company may, at its option and expense: (i) obtain the right for Customer to continue using the Software Services; (ii) modify or replace the affected portion of the Software Services to make them non-infringing while maintaining materially equivalent functionality; or (iii) if neither option is reasonably available, terminate the affected portion of the Software Services and refund prepaid fees for the unused portion of the applicable Subscription Term.
       5. Sole Remedy. THIS SECTION 10.1 STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS.
    2. By Customer. Customer will defend, indemnify, and hold harmless Company and its affiliates and their respective officers, directors, and employees (“Company Indemnified Parties”) from and against any third-party claims to the extent arising from: (a) Customer Data or customer prompts, except to the extent such claim is caused by Company’s breach of this Agreement or the BAA; (b) Customer’s use of AI Output; (c) Clinical decisions, medical judgments, documentation determinations, coding decisions, reimbursement submissions, or other professional determinations made by Customer or its personnel; (d) Customer’s violation of applicable federal, state, or local law or regulatory requirements; or (e) Customer’s use of the Software Services other than in accordance with this Agreement or the Documentation.
    3. Procedures. The indemnified party must promptly notify the indemnifying party in writing of any claim for which indemnification is sought, provided that failure to provide prompt notice will relieve the indemnifying party of its obligations only to the extent materially prejudiced. The indemnifying party will have sole control of the defense and settlement of the claim, provided that the indemnifying party may not settle any claim in a manner that: (a) admits liability on behalf of the indemnified party; (b) imposes injunctive or other non-monetary relief on the indemnified party; or (c) requires payment by the indemnified party, without the indemnified party’s prior written consent, not to be unreasonably withheld. The indemnified party may participate in the defense at its own expense.
11. TERM AND TERMINATION
    1. Term. This ToS is effective as of the date of Customer’s execution of the applicable Order Form and continues for the Subscription Term set forth therein (or as otherwise modified by Section 12.2).
    2. Termination for Cause. Either party may terminate this ToS upon written notice if the other party materially breaches this ToS and fails to cure such breach within thirty (30) days after receiving written notice specifying the breach in reasonable detail; provided, however, that if a breach is not capable of cure, termination may be effective upon notice. Company may also terminate this ToS immediately upon notice if Customer uses the Software Services (a) in a manner that poses a material security risk or legal liability to Company or its other customers, or (b) in violation of applicable law or regulation governing the use of artificial intelligence in clinical settings.
    3. Effect of Termination. Upon expiration or termination of this ToS: (a) all licenses granted hereunder immediately terminate and Customer will cease all use of the Software Services; (b) each party will securely erase or return the other party’s Confidential Information within thirty (30) days; and (c) Company will make Customer Data available for export in an industry-standard format for a period of thirty (30) days following termination, after which Company may delete Customer Data in accordance with the BAA and applicable law.
    4. Survival. Sections 1.3 (Order of Precedence), 3 (Clinical Responsibility), 4.3 (De-Identified Data), 4.5 (CCPA), 6 (Intellectual Property), 9 (Limitation of Liability), 10 (Indemnification), 11.3 (Effect of Termination), and 12 (Miscellaneous) survive expiration or termination of this ToS.
    5. EHR Changes and Migration.
       1. Continuation of Services. Customer’s subscription to the Software Services continues independently of any change to Customer’s EHR, including any migration to a new EHR or termination of any separate agreement with ContinuumCloud. Neither an EHR change nor the termination of Customer’s ContinuumCloud subscription will automatically terminate this ToS or relieve Customer of its payment obligations hereunder.
       2. EHR Incompatibility. If the Software Services cease to function with Customer’s then-current EHR due to changes made by the EHR vendor, Company will use commercially reasonable efforts to restore functionality within ninety (90) days following Customer’s written notice describing the incompatibility in reasonable detail. If the Software Services are materially impaired during this cure period, Customer will receive a Service Credit equal to 10% of the monthly fee for each calendar month in which the impairment continues, subject to the monthly cap in Section 7.4.
       3. EHR Migration. If Customer migrates to a new EHR, Company will use commercially reasonable efforts to support the Software Services with the new EHR within one hundred twenty (120) days following Customer’s written notice of the migration, provided that Customer gives Company reasonable advance notice and provides necessary access, cooperation, and technical information. If the Software Services are materially impaired during this cure period, Customer will receive a Service Credit equal to 10% of the monthly fee for each calendar month of impairment, subject to the monthly cap in Section 7.4.
       4. Termination After Cure Period. If Company is unable to restore material functionality within the applicable cure period after using commercially reasonable efforts, Customer may terminate this ToS upon written notice and will receive a pro rata refund of any prepaid fees for the unused portion of the Subscription Term. The remedies in this Section 11.5 are Customer’s sole and exclusive remedies for EHR incompatibility or migration-related service impairment.
12. FEES
    1. ContinuumCloud-Administered Billing. Fees for the Software Services are set forth in the applicable Order Form executed between Customer and ContinuumCloud. All payment obligations, billing mechanics, invoicing, overdue charges, suspension for non-payment, and payment dispute procedures are governed exclusively by Customer’s MSA with ContinuumCloud. Company’s right to suspend or terminate Customer’s access to the Software Services for non-payment shall be co-extensive with ContinuumCloud’s right to suspend under the MSA, and Company may exercise such right upon notice from ContinuumCloud that Customer’s account is subject to suspension.
    2. Direct Billing Upon ContinuumCloud Termination. If Customer’s MSA with ContinuumCloud is terminated or expires during the Subscription Term, the subscription to the Software Services will continue in full force and effect for the remainder of the Subscription Term. Company will issue a direct order form on Company paper (the “Company Order Form”) establishing the direct billing relationship for the remainder of the Subscription Term. The Company Order Form will set forth applicable fees, billing frequency, and payment terms. Unless otherwise agreed in the Company Order Form, fees will be billed annually in advance. Invoices are due within thirty (30) days of issuance. Overdue amounts accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is lower. Company may suspend access to the Software Services upon ten (10) days’ written notice if any invoice remains unpaid past its due date.
13. MISCELLANEOUS
    1. Governing Law and Dispute Resolution. This ToS is governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Any dispute arising under or relating to this ToS shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, at a location mutually agreed by the parties or, absent agreement, at the AAA regional office nearest to Customer’s principal place of business. An arbitration award may be confirmed in any court of competent jurisdiction.
    2. Changes to Terms. Company may update or modify this ToS from time to time to reflect changes in applicable law, Company’s services, or industry practices. Company will provide at least thirty (30) days’ advance notice of material changes by email, through the Software Services, or by posting the updated ToS at www.continuumcloud.com/customeragreements/. Continued use of the Software Services after the effective date of any change constitutes Customer’s acceptance of the updated ToS. If Customer reasonably believes a change materially and adversely affects its rights, Customer may notify Company in writing within the thirty (30)-day notice period and the parties will work in good faith to resolve the concern.
    3. Taxes. Fees for the Software Services are exclusive of all taxes, levies, duties, tariffs, and similar governmental assessments, including sales, use, and value-added taxes (“Taxes”). Customer is responsible for all Taxes associated with its use of the Software Services, except for taxes assessed on Company’s net income. Tax obligations are administered through Customer’s Order Form and MSA with ContinuumCloud.
    4. Assignment. Neither party may assign, subcontract, delegate, or otherwise transfer its rights or obligations under this ToS without the prior written consent of the other party; provided, however, that either party may assign this ToS without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets to a non-competitor, provided the assignee assumes all obligations hereunder. Any purported assignment in violation of this Section is null and void. This ToS binds and inures to the benefit of the parties and their respective permitted successors and assigns.
    5. Non-Solicitation. During the Subscription Term and for a period of twelve (12) months following expiration or termination of this ToS, neither party will, directly or indirectly, solicit for employment or engagement any employee or contractor of the other party who was involved in the performance or receipt of services under this Agreement, without prior written consent. This restriction does not apply to individuals who respond to a general advertisement or job posting not specifically targeted at the other party’s personnel.
    6. Export Control. The Software Services may be subject to U.S. export control laws, including the Export Administration Act and its associated regulations. Customer will not use or export the Software Services in violation of any applicable U.S. export laws or regulations, including to any individual or entity on a restricted party list or in any embargoed or sanctioned jurisdiction. Customer will comply with all applicable export control laws and will obtain any required licenses or government approvals prior to exporting or re-exporting the Software Services.
    7. Force Majeure. Neither party will be in breach of this ToS for any delay or failure in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemic, governmental orders, labor disputes, or failures of third-party telecommunications or cloud infrastructure, provided that the affected party (a) provides prompt written notice to the other party and (b) uses reasonable efforts to resume performance as soon as practicable. Payment obligations are not excused by force majeure events.
    8. Notices. Notices under this ToS may be delivered by email (with confirmation of receipt) for routine matters. Notices relating to breach, termination, or indemnification must be delivered in writing by nationally recognized overnight courier or certified mail (return receipt requested) to the address set forth in the applicable Order Form, or to: Clinical Notes AI, Inc. dba Clinically AI, 17605 Via Del Campo, San Diego, California 92127, Attn: Legal.
    9. Severability and Waiver. If any provision of this ToS is held invalid or unenforceable, the remaining provisions remain in full force and effect, and the invalid provision will be modified to the minimum extent necessary to make it valid and enforceable. Any waiver of a provision of this ToS must be in writing. Failure to enforce any provision on one occasion does not constitute a waiver of that provision or any other provision.
    10. Entire Agreement. This ToS, together with the MSA, any executed Order Forms and SOWs, and the BAA (if applicable), constitutes the entire agreement between Company and Customer with respect to the Software Services and supersedes all prior discussions, negotiations, representations, or agreements relating to the subject matter hereof. No modification of this ToS is effective unless in writing and agreed by both parties, except as provided in Section 13.2.