1. Definitions.

1. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer in connection with the HST Services or the SGH Services, as applicable. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the HST Services or SGH Services, as applicable, by or on behalf of Customer.
2. “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
3. “Deliverables” means all original work product and other tangible or intangible materials, used or developed during the Term of the applicable Order Form, including without limitation original programs, software, software programs in both source code and object code, utilities, printed and recorded written materials, and ideas, concepts, know-how, techniques, methodologies, processes, trade secrets, reports, documents, templates, studies, specifications, business methods, tools, solution construction aids, analytical frameworks, algorithms, concepts, ideas, thoughts, products, documentation, abstracts, and summaries thereof, developed during the Term of the applicable Order Form by SGH and/or any affiliates, agents, employees, independent contractors and/or other personnel of SGH who provide any SGH Services to Customer and/or who assist SGH in connection with any SGH Services provided to Customer by SGH under this Agreement or embodied and/or incorporated in any work, services, and/or products delivered to Customer under this Agreement.
4. “Documentation” means any non-marketing written or electronic technical specifications or materials provided by HST to Customer for use in connection with the Software and, to the extent consistent with and not limiting of the foregoing, the Specifications.
5. “Enhancement” means the (i) addition of a new Software feature by HST, or (ii) modification of or change to an existing Software feature by HST.
6. “Equipment” means the computer hardware, network and telecommunications infrastructure, and miscellaneous items owned or purchased by Customer for use in connection with the Software, which Equipment must meet HST specifications.
7. “Error” means a failure of the Software to conform to the Specifications.
8. “HST Materials” means all Software, HST Systems, computer programs, source code, object code, database design, Documentation, know-how, and technology, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports embodied therein, in printed, graphic, or machine-readable format, which are used or provided by HST in connection with the Software or the HST Services, or provided by HST to Customer.For the avoidance of doubt, HST Materials include Resultant Data and any information, data, or other content derived from HST’s monitoring of Customer’s access to or use of the HST Services, but do not include Customer Data.
9. “HST Services” means the services to be provided by HST to Customer, as defined in the applicable Order Form.
10. “HST Systems” means the information technology infrastructure used by or on behalf of HST in performing the HST Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by HST or through the use of third-party services.
11. “IntellectualProperty” means any and all (by whatever term known or designated) tangible and intangible, now known or hereafter existing (i) rights associated with works of authorship, including but not limited to copyrights, (ii) trademark and trade name rights and similar rights (including service marks, trade dress, Internet domain names and all related goodwill appurtenant thereto), (iii) trade secret rights, (iv) patents (including the rights to make, use, sell, have made, have sold, import and have imported and all shop rights related thereto), designs, algorithms, and other industrial property rights, (v) other proprietary rights including without limitation logos, character rights, rights of publicity, “rental” rights and rights to remuneration, whether arising by operation of law, contract, license or otherwise, and (vi) registrations, applications, renewals, extensions, continuations, divisions or reissues of any of the foregoing now or hereafter in force.
12. “License” means the license granted by HST to Customer to use the Software.
13. “Resultant Data” means data and information related to Customer’s use of the HST Services that is used by HST in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the HST Services.
14. “SGH Services” means the services to be provided by SGH to Customer, as defined in the applicable Order Form.
15. “Software” means the software application or applications and any third-party or other software, and any Upgrades or Enhancements thereto, that HST provides remote access to and use of as part of the HST Services.
16. “Specifications” means such specifications for the HST Services as may be provided to Customer by HST.
17. “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the HST Services that are not proprietary to HST.
18. “Upgrade” means a new release of the same version of the Software by HST constituting a compendium of Enhancements.
19. “Use” means copying or transmitting any portion of the Software or Documentation into a computer and processing of the instructions or statements contained in the Software.

2. Software License.

Subject to the terms and conditions of this Agreement, during the Term of the applicable Order Form, HST (a) will provide the HST Services to Customer, directly or through subcontractors, including hosting, managing, operating, and maintaining the Software for remote electronic access and use by Customer (“Hosted Services“) and (b) hereby grants to Customer a non-exclusive, non-transferable, and non-assignable License to Use the Services and Documentation during the Term of the applicable Order Form, solely in connection with its internal business purposes relating to the operation of an outpatient ambulatory surgery center at the Location (as defined in the applicable Order Form).

The License conveys no right, title, or interest in or to any Intellectual Property rights in or relating to the HST Services, HST Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the HST Services, the HST Materials, and the Third-Party Materials are and will remain with HST and the respective rights holders in the Third-Party Materials.

3. License Limitations and Restrictions.

Customer shall not, and shall not permit any third party to, access or use the HST Services or HST Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, and shall not permit any third party to, except as this Agreement expressly permits:

1. copy, modify or create derivative works or improvements of the HST Services or HST Materials;
2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any HST Services or HST Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the HST Services or HST Materials, in whole or in part;
4. bypass or breach any security device or protection used by the HST Services or HST Materials;
5. input, upload, transmit, or otherwise provide to or through the HST Services or HST Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the HST Services, HST Systems or HST’s provision of services to any third party, in whole or in part;
7. remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property or proprietary rights notices from any HST Services or HST Materials, including any copy thereof;
8. access or use the HST Services or HST Materials for purposes of competitive analysis of the HST Services or HST Materials, the development, provision or use of a competing software service or product or any other purpose that is to HST’s detriment or commercial disadvantage; or
9. otherwise access or use the HST Services or HST Materials beyond the scope of the License.

4. Resources.

Customer is responsible for the readiness of Equipment, facilities, Internet access, necessary bandwidth and network infrastructure, proper Microsoft operating systems for desktop and laptop computers, and personnel for utilization of the Software at the Location, and the same must be ready prior to commencement of Virtual Training (as defined in the applicable Order Form).

Customer is also responsible for identifying authorized users of the HST Services. If Customer does not have all of the above ready for Virtual Training when scheduled, Customer must reimburse HST and SGH for any expenses, including Travel Expenses (as defined in the applicable Order Form), incurred by HST, unless Customer has notified HST and SGH of the unavailability at least 30 days prior to the scheduled Virtual Training date.

5. Intellectual Property Rights.

1. HST Services and HST Materials.All right, title, and interest in and to the HST Services and HST Materials, including all Intellectual Property rights therein, are and will remain withHSTand the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the HST Services or HST Materials (including Third-Party Materials) except as expressly set forth inSection 2of these Terms and Conditions or the applicable third-party license, in each case subject toSection 3of these Terms and Conditions. All other rights in and to the HST Services and HST Materials (including Third-Party Materials) are expressly reserved by HST and the respective third-party licensors.
2. Customer Data. As between Customer, HST and SGH, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property rights relating thereto, subject to the rights and permissions granted in subsection (c).
3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to HST and SGH: (i) as are necessary or useful to (A) perform the HST Services and SGH Services, as applicable, and (B) enforce this Agreement and exercise HST’s and SGH’s respective rights and perform HST’s and SGH’s respective duties hereunder; and (ii) to de-identify and/or aggregate any such information as necessary and useful for HST’s reasonable purposesprovided that the de-identification conforms to the requirements of 45 C.F.R. § 164.514(b).
4. Deliverables. Except for the Prior Information (as defined below), Deliverables, including any Intellectual Property incorporated in such Deliverables, will be deemed the exclusive property of SGH.Notwithstanding anything to the contrary contained herein, all original work product and other tangible or intangible materials owned or developed by any party and/or as to which any party has any rights prior to the Effective Date of the applicable Order Form (collectively, the “Prior Information”) will remain the property of that party.

6. Control of Services; Additional Services.

1. HST Service and System Control. As between the parties:
   1. HST has and will retain sole control over the operation, provision, maintenance and management of the HST Services and HST Materials, including the: (A) HST Systems; (B) selection, deployment, modification, and replacement of the Software; and (C) performance of HST Services and maintenance, Upgrades, Enhancements, corrections, and repairs; and
   2. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and have sole responsibility for all access to and use of the HST Services and HST Materials by or through the Customer Systems or any other means controlled by Customer, including any: (A) information, instructions or materials provided by any of them through or to the HST Services or HST; (B) results obtained from any use of the HST Services or HST Materials; and (C) conclusions, decisions, or actions based on such use.
2. Changes. HST reserves the right, in its sole discretion, to make any changes to the HST Services and HST Materials that it deems necessary or useful to: (i) maintain or enhance the quality, performance, or delivery of the Software or HST Services; or (ii) comply with applicable law.
3. Suspension or Termination. HST may suspend, terminate or otherwise deny Customer’s and/or any user’s access to or use of all or any part of the Software or HST Services or HST Materials, without incurring any resulting obligation or liability, if HST believes in good faith that: (i) Customer or any user has materially breached this Agreement, or accessed or used the HST Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (ii) this Agreement expires or is terminated. This Section does not limit any of HST’s other rights or remedies, whether at law, in equity or under this Agreement.
4. Enhancements and Upgrades. HST will provide such Enhancements and Upgrades to Customer as it provides to other users of the Software from time to time.
5. Consulting and Management. Consulting and management services will be provided by HST only after Customer has entered into a separate consulting agreement with HST. HST is not required by this Agreement to provide any additional consulting or management services.
6. Customization. At its sole discretion, HST may accommodate special requests from Customer for customization of the Software or, if applicable, the print template of a pre-assessment form. However, additional charges will be assessed for any such customization, the exact amount of which will be determined by HST based upon the nature of the request. The terms of any customization must be evidenced by a written customization amendment to this Agreement, executed by the parties.

7. Customer Obligations.

1. Customer Systems and Cooperation. Prior to installation of the Software and commencement of Virtual Training, Customer is responsible for obtaining, and will obtain, the proper Microsoft operating systems for desktop and laptop computers at Customer’s expense and ensure that Customer Systems and network infrastructure and bandwidth meet HST specifications for access to and operation of the Software. Customer will at all times during the Term of the applicable Order Form: (i) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the HST Services are accessed or used; (ii) provide HST personnel with such access to Customer’s premises and Customer Systems as may be necessary for HST to perform the HST Services in accordance with the Availability Requirement (as defined below) andSpecifications; and (iii) provide all cooperation and assistance as HST may reasonably request to enable HST to exercise its rights and perform its obligations under and in connection with this Agreement.If Customer fails to have all things in readiness for On-Site Support (as defined in the appliable Order Form), if applicable, then Customer must reimburse HST for any and all expenses caused by Customer’s failure to have things in readiness, unless Customer has notified HST of such failure at least 30 days prior to the training date.
2. Customer Failure or Delay; Users and Access Credentials. SGH and HST are not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (a “Customer Failure”). Customer is responsible forthe acts and omissions ofits users and for anyaccess using Customer’s or a user’s access credentials, whether or not authorized.
3. Verification of Information. In connection with certain HST Services, HST obtains information from Customer’s patients and may provide Customer with various data and reports, each of which Customer may use in connection with health-related services and procedures for the applicable patient, and for which Customer is solely responsible for verifying that all information is up-to-date and accurate.

8. Service Levels.

1. Service Levels. Subject to the terms and conditions of this Agreement, HST will use commercially reasonable efforts to make the Hosted Services Available at least 99.5% of the time as measured by HST over the course of each calendar month during the Term of the applicable Order Form (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions (as defined and described below) (the “Availability Requirement”). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by Customer over theInternetand operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer to access or use the Hosted Services that is due, in whole or in part, to any: (i) act or omission by Customer, or anyone using Customer’s or a user’s access credentials, that does not strictly comply with this Agreement and the Specifications; (ii) Customer Failure; (iii) Customer’s Internet connectivity; (iv) Force Majeure Event (as defined below); (v) failure, interruption, outage or other problem with any software, hardware, system, network, facility, or other matter not supplied by HST pursuant to this Agreement; (vi) Scheduled Downtime (as defined below); or (viii) disabling, suspension or termination of the HST Services pursuant tosubsection 6(c)of these Terms and Conditions.
2. Scheduled Downtime. HST will use commercially reasonable efforts to: (i) schedule downtime for routine maintenance of the Hosted Services during non-business hours; and (ii) give Customer at least 48 hours’ prior notice and, if possible seven (7) days’ notice, of any scheduled outages (“Scheduled Downtime”) of the Hosted Services. In addition, Customer will have limited access to HST’s production servers between 1 a.m. and 3 a.m. Central Timeeach morningdue to scheduled backups and routine maintenance.
3. Support Services. The HST Services include HST’s standard Customer support services (“Support Services”) in accordance with the HST service support schedule.

9. Pass-Through Fees; Taxes; Setoff.

1. Pass-Through Fees. Fees payable to HST exclude pass-through fees (“Pass-Through Fees”) from business partners, which will be billed monthly and without prior notice, in addition to all other fees Customer pays under this Agreement. Pass-Through Fees cover, among other things, the fees that HST pays its business partners for CPT and ICD codes. Notwithstanding any other provision of this Agreement to the contrary, HSTwillhave the right to increase the Pass-Through Fees to offset any increases in rates or other costs.
2. Taxes. All sums payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kindimposedby any federal, state, or local governmental or regulatory authority on any sums payable by Customer hereunder, other than any taxes imposed on HST’s or SGH’s income.
3. No Deductions or Setoffs. All amounts payable to HST and SGH under this Agreement will be paid by Customer to HST or SGH, as applicable, in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than deduction or withholding of tax as may be required by applicable law).

10. Confidentiality.

1. Confidential Information. In connection with this Agreement each party (each, a “Disclosing Party”) may disclose or make available Confidential Information (as defined below) to the other parties (each, a “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including, but not limited to, information consisting of or relating to the Disclosing Party’s technology, systems, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.”Without limiting the foregoing, (i) all HST Materials are the Confidential Information of HST, and (ii) the financial terms of this Agreement are the Confidential Information of HST and SGH.
2. Protection of Confidential Information. Each Receiving Party shall:(i) not access or use Confidential Information of a Disclosing Party other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;(ii) not disclose or permit access to Confidential Information of a Disclosing Party other than to its employees, officers, consultants, agents, independent contractors, and legal advisors (collectively, “Representatives”) who: (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (B) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under thisSection 10;and (C) are bound by confidentiality obligations at least as protective of the Confidential Information as the terms set forth herein;(iii) safeguard the Confidential Information of a Disclosing Party from unauthorized use, access, or disclosure using at least the degree of care the Receiving Party uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and(iv) ensure its Representatives’ compliance with,and be responsible and liable for any of its Representatives’ non-compliance with,the terms of thisSection 10.
3. Exclusions. “Confidential Information” of a Disclosing Party excludes information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information of a Disclosing Party.
4. Compelled Disclosures. Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information of a Disclosing Party in response to a valid court order, subpoena, law, rule, regulation, or other governmental action, provided that (a) to the extent permitted by applicable law or regulation, the Receiving Party required to make the disclosure notifies the Disclosing Party in writing prior to disclosure of the information, and (b) the Receiving Party reasonably cooperates with the Disclosing Party, at the Disclosing Party’s expense, in any attempt by the Disclosing Party to limit or prevent the disclosure of the Confidential Information.In the absence of a protective order or a waiver by the Disclosing Party of the Receiving Party’s confidentiality obligations herein, the Receiving Party may disclose only that portion of the Confidential Information it is advised by its counsel that it is legally required or compelled to disclose, and the Receiving Party shall use commercially reasonable efforts to ensure that confidential treatment will be accorded the Confidential Information so disclosed.
5. Return or Destruction.Upon the expiration or earlier termination of this Agreement or upon the written request of the Disclosing Party, the Receiving Party shall: (a) at its own expense, (i) promptly return to the Disclosing Party all Confidential Information of the Disclosing Party that is in tangible form (and all copies thereof) that is the property of the Disclosing Party or that contains any Confidential Information of the Disclosing Party (collectively, the “Material Information”), or (ii) upon the written request of the Disclosing Party, destroy the Material Information and provide the Disclosing Party with written confirmation of such destruction; and (b) cease all further use of any Material Information, whether in tangible or intangible form.
6. Ownership.As between the parties, the parties agree that the Confidential Information of another party is and will remain the property of such other party. The Receiving Party obtains no right, title, interest, or license in or to any of the Confidential Information of a Disclosing Party except for the rights set forth in this Agreement.

11. Warranties and Covenants.

1. Mutual Representations and Warranties. Each party represents and warrants to the other parties that:(i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or other organization;(ii) it has thefullright, power and authority to enter into this Agreement; and(iii) when executed and delivered by all parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
2. HST Warranties. HST represents and warrants that: (i) all HST Services performed by HST’s personnel under this Agreement will be performed in a professional manner in accordance with industry standards; (ii) to the best of its knowledge, the Use by Customer of the Software in accordance with the Documentation will not infringe upon any U.S. copyright or trademark rights of any third party; and (iii) the Software will operate in accordance with the Specifications during the Term of the applicable Order Form. If Customer notifies HST in writing of a substantial non-conformity between the Specifications and the Software, and if HST is able to replicate and verify that such substantial non-conformity exists, then HST may, at its sole option, (y) replace or correct the Software so that the Software substantially conforms to the Specifications, or (z) terminate this Agreement. The remedies set forth in thissubsection 11 (b)are the sole remedies with respect to any breach of the warranty provided in subsection (iii) of thissubsection 11 (b). EXCEPT AS EXPRESSLY SET FORTH IN THISSECTION 11,ALL HST SERVICES AND SOFTWARE ARE PROVIDED “AS IS” ANDHST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO THE SOFTWARE AND THE HST SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. HST FURTHER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO INTERNET CONNECTIVITY AT THE LOCATION OR THE TRANSPORT OF INFORMATION VIA THE INTERNET. FOR PURPOSES OF THIS SECTION, THE TERM “INTERNET” INCLUDES ELECTRONIC DATA INTERCHANGE (EDI). FINALLY, CUSTOMER ACKNOWLEDGES THAT HST DOES NOT MANUFACTURE MICROSOFT SQL SERVER, THE MICROSOFT NETWORK OPERATING SYSTEM SOFTWARE, OR ANY EQUIPMENTTHAT CUSTOMERMAY USE OR PURCHASE IN CONNECTION WITH THE INSTALLATION OF THE SOFTWARE, AND DOES NOT WARRANT DESIGN, FUNCTIONALITY, OR WORKMANSHIP OF SUCH MICROSOFT SOFTWARE OR EQUIPMENT.
3. Links to External Sites.The Software may include links to websites that are owned and operated by third parties not under the control of HST. HST provides the links for convenience only and does not provide a warranty of any type regarding the actions of such third parties or the security of information sent to such third parties while Customer is using their websites. Under no circumstances will HST be responsible or liable in any way for the availability of services or products offered, or the content located on or through, any such third party’s website.
4. SGH Warranties and Covenants.
   1. SGH represents, warrants and covenants that it will comply with the tasks outlined as SGH’s responsibility in the applicable Order Form.
   2. SGH represents, warrants and covenants that it will comply with all of the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA“) in its performance under this Agreement, to the extent applicable to SGH.
   3. EXCEPT AS EXPRESSLY PROVIDED IN THISSECTION 11, SGH MAKES NO WARRANTIES, REPRESENTATIONS OR AGREEMENTS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SGH SERVICES OR ITS OBLIGATIONS HEREUNDER, AND SGH SPECIFICALLY DISCLAIMS AND EXCLUDES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Customer Warranties and Covenants.
   1. Customer represents, warrants and covenants that it will comply with the tasks outlined as Customer’s responsibility in the applicable Order Form.
   2. Customer represents, warrants and covenants that it shall timely provide all information to SGH that is necessary for SGH to process claims and perform the SGH Services (the “Customer Documentation“).
   3. Customer represents and warrants to SGH that, to the best of Customer’s knowledge, the Customer Documentation is true, correct and complete, and Customer acknowledges that SGH will rely on the Customer Documentation for all purposes under this Agreement, including processing claims.
   4. Customer represents and warrants to SGH that, to the extent included in the Documentation:
      1. (A) all professional services rendered to patients were legitimate and medically necessary for the treatment of the patient; and
      2. (B) all billing information is for services actually provided to the patient, performed by the rendering provider indicated, at the location of service indicated, and on the date indicated, irrespective of credentialing or any other issues relating to reimbursement of the claim.
   5. Customer represents, warrants and covenants that, to the extent that Customer requests or requires SGH to use any client-developed or third-party software in connection with the SGH Services under this Agreement (collectively, “Third-Party Software“), Customer shall be solely responsible for any errors or other issues of any kind arising from or relating to the use of such Third-Party Software by SGH.
   6. Customer represents, warrants and covenants that, upon termination of this Agreement, Customer shall promptly return to SGH any equipment provided to Customer by SGH. All such equipment shall be in good operating condition and repair, normal wear and tear excepted.

12. Indemnification; Limitation on Liability.

1. HST Indemnification of Customer.HST will indemnify, defend, and hold harmless Customer from andagainstlosses, damages, and reasonable costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by Customer arising out of or relating to any claim, suit, action, or proceeding, whether arising out of law or equity (each, an “Action”), by a third party (other than an affiliate of Customer) to the extent that such Losses arise from(i) HST’s negligence, (ii) HST’s material breach of this Agreement, or (iii) an allegation that Customer’s use of the HST Services (excluding Customer Data and Third-Party Materials) in compliance with this Agreement (including the Specifications) infringes a third party’s U.S. patent, trade secret, or copyright; provided that the obligation in subsection (iii) does not apply to any Action or Losses arising out of or relating to any:(x) access to or use of the HST Services or HST Materials in combination with any hardware, system, software, network or other materials or service not provided by HST;(y) modification of the HST Services or HST Materials other than (A) by or on behalf of HST, (B) with HST’s written approval in accordance with the Specifications; or(z) failure to timely implement any modifications, Upgrades, replacements, or Enhancements.
2. Customer Indemnification of HST. Customer will indemnify, defend, and hold harmless HST from and against Lossesincurred by HST in connection with any Action by a third party (other than an affiliate of HST) to the extent that such Losses arise out of or relate to:(i) Customer’smaterial breach of this Agreement; (ii)Customer’s negligence; or (iii) violations of the Telephone Consumer Protection Act (TCPA) by Customer or any Customer agent or affiliate.
3. Mitigation. If any of the HST Services or HST Materials are, or in HST’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party’sU.S. patent, trade secret, or copyright, or if Customer’s use of the HST Services or HST Materials is enjoined or threatened to be enjoined, HST may, at its option and sole cost and expense:(i) obtain the right for Customer to continue to use the HST Services and HST Materials materially as contemplated by this Agreement;(ii) modify or replace the HST Services and HST Materials, in whole or in part, to seek to make the HST Services and HST Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or(iii) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the HST Services and HST Materials. ThisSection 12sets forth Customer’s sole remedies and HST’s sole liability and obligation regarding any actual, threatened, or alleged claims that the Software infringes, misappropriates, or otherwise violates any third-party intellectual property right.

13. SGH Indemnification of Customer; Customer Indemnification of SGH.

1. SGH Indemnification of Customer.SGH will indemnify, defend, and hold harmless Customer from and against Losses incurred by Customer arising out of or relating to any Action by a third party (other than an affiliate of Customer) to the extent that such Losses arise from:(i) an allegation that the use of DOCTRIX® Analytics as permitted hereunder infringes or misappropriates the Intellectual Property rights of a third party; or (ii) bodily injury (including death) based upon the actions of SGH or its employees or agents (each, a “Claim Against Customer”); provided that Customer (A) promptly gives SGH written notice of the Claim Against Customer; (B) gives SGH sole control of the defense and settlement of the Claim Against Customer (provided that SGH may not settle any Claim Against Customer unless the settlement releases Customer of all liability); and (C) provides to SGH all reasonable assistance, at SGH’s expense.
2. Customer Indemnification of SGH.Customer will indemnify, defend, and hold harmless SGH from and against Losses incurred by SGH arising out of or relating to any Action by a third party (other than an affiliate of SGH) to the extent that such Losses arise from:(i) any non-compliance by Customer with the provisions of this Agreement; (ii) any breach of the representations and warranties of Customer under this Agreement; or (iii) any non-compliance by Customer with any applicable local, state, federal and international laws, regulations and directives (a “Claim Against SGH”); provided that SGH (A) promptly gives Customer written notice of the Claim Against SGH; (b) gives Customer sole control of the defense and settlement of the Claim Against SGH (provided that Customer may not settle any Claim Against SGH unless the settlement releases SGH of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
3. Notwithstanding anything in this Agreement to the contrary, in no event will SGH be held liable or responsible for the following:
   1. reimbursing to Customer any uncollectable reimbursements as long as reasonable efforts have been made by SGH in attempting to collect on those claims as outlined in the applicable Order Form as SGH responsibilities;
   2. any payment shortfalls as a result of contractual issues and statutory/government policy changes, or payer specific reasons that are clearly outside SGH’s control;
   3. any refunds, recoupments for payments received by Customer prior to the effective date of the applicable Order Form;
   4. any transactions following the termination of this Agreement;
   5. any misconduct of Customer relating to compliance violations set forth by the OIG and that of HIPAA; or
   6. any errors or issues of any kind relating to the use of Third-Party Software by SGH.

14. Limitation of Liability.

1. LIMITATION OF LIABILITY.THE CUMULATIVE, AGGREGATE LIABILITY OF HST TO ANOTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE COMPENSATION PAID OR PAYABLE BY CUSTOMER TO HST DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE CUMULATIVE, AGGREGATE LIABILITY OF SGH TO ANOTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE COMPENSATION PAID OR PAYABLE BY CUSTOMER TO SGH DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
2. EXCLUSION OF CERTAIN DAMAGES.IN NO EVENT WILL HST OR SGH BE LIABLE TO ANOTHER PARTY HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.

15. Termination.

1. Default. A party may terminate this Agreement immediately upon written notice to the other parties if another party: (i) materially breaches this Agreement or is in material default of any obligation hereunder, which default is incapable of cure or which has not been cured within 30 days of receipt by such breaching party of written notice of such breach or default from a non-defaulting party; (ii) becomes insolvent or adjudicated as bankrupt, or any action is taken by a party, or by others against a party, under any insolvency, bankruptcy or reorganization act, and such action is not fully dismissed within 60 days of the institution thereof; or (iii) makes an assignment for the benefit of creditors or a receiver is appointed for such party. Additionally, SGH or HST may terminate this Agreement immediately upon written notice to the other parties if Customer defaults on its payment obligations and such payment default is not cured within ten (10) days after receipt of written notice of such payment default from a non-defaulting party.Each party agrees to copy all parties to this Agreement on any notice of breach or default to a defaulting party.
2. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:(i) all rights, licenses, consents and authorizations granted by any party to another party hereunder will immediately terminate;(ii) HST will disable all Customer access to the Hosted Services and HST Materials;(iii) Customer will immediately cease all use of any HST Services or HST Materials; (iv) Customer will (A) promptly return to HST or SGH, as applicable, or at HST’s or SGH’s written request, as applicable, destroy, all documents and tangible materials containing, reflecting, incorporating or based on any HST Materials, HST Confidential Information or SGH Confidential Information, and (B) permanently erase all HST Materials, HST Confidential Information and SGH Confidential Information from all Customer Systems;(v) all information and materials described in thissubsection 15 (b)will remain subject to all confidentiality, security and other applicable requirements of this Agreement;and (vi) if HST terminates this Agreement for Customer’s failure to pay, all fees that would have become payable had this Agreement remained in effect until expiration of the Term of the applicable Order Form will become immediately due and payable, and Customer will pay such fees, together with all previously-accrued but not yet paid fees, on receipt of HST’s invoice therefor. Notwithstanding the foregoing, (x) with respect to information and materials then in its possession or control, the Receiving Party may retain the Disclosing Party’s Confidential Information in its then current state and solely to the extent and for so long as required by applicable law, and (y) HST may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course. The rights of any party to terminate this Agreement are not exclusive of any other remedies given to any party by this Agreement or by law. All rights of each party regarding defaults of any other party are cumulative.Upon termination of this Agreement, Customer will promptly return to SGH any equipment provided to Customer by SGH.All such equipment shall be in good operating condition and repair, normal wear and tear excepted.
3. Surviving Terms. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive such expiration or termination.

16. Miscellaneous.

1. BAA. The parties agree to the terms of the Business Associate Addendum attached asExhibit Ato the Order Form.
2. Notices. Any notice, request, consent, demand, or other communications under this Agreement must be sent in writing and addressed to a party as set forth in the applicable Order Form (or to such other address or such other person that such party may designate from time to time in accordance with thissubsection 16 (b)). Notices will be deemed given (i) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (ii) two (2) days after mailing if by overnight commercial delivery.
3. Assignment. No party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other parties’ prior written consent, which may not be unreasonably withheld; provided, however, that HST and SGH shall have the right to assign this Agreement, without the consent of the other parties, in connection with any merger, consolidation, reorganization, sale of all or substantially all of its related assets or similar transaction. Any purported assignment, delegation, or transfer in violation of thissubsection 16 (c)is void.
4. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
5. Amendment; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by all parties. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
6. Relationship of the Parties. The relationship among the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and no party has the authority to contract for or to bind any other party in any manner whatsoever.
7. Dispute Resolution. The partieswillattempt in good faith to resolve anydispute arising out of or in connection with this Agreementby negotiation and consultation amongst themselves. If any such dispute is not resolved on an informal basis within 30 business days after one party delivers the dispute notice to the other parties, then any party may, by written notice to the other parties, initiate binding arbitration proceedings.Arbitration will be administeredby JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules.The place of arbitration will be Dallas, Texas. The judgment of the arbitration tribunal will be accompanied by awrittenstatement of the basis for such judgment and may be enforced by any court having proper jurisdiction. The provisions of thissubsection 16 (g)will survive the termination of this Agreement. Any provisional remedy that would be available from a court of law will be available from the arbitrator to the parties pending arbitration. Notwithstanding the foregoing, any party may seek from a court of competent jurisdiction any interim or provisional relief that is necessary to protect the rights or property or that party, pending the parties’ selection of the arbitrator.
8. Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Delawarewithout giving effect to any choice or conflict of law provision.
9. Legal Fees. In any arbitration or civil action between any parties arising from or in connection with this Agreement, or its breach, the prevailing party in such action will be entitled, in addition to damages and injunctive or other relief, to reimbursement of its reasonable attorneys’ fees.
10. Licenses and Permits. If any governmental license or permit is required for the proper and lawful conduct of a party’s activities under this Agreement then such party, at its expense,willprocure and maintain such license or permit and comply with the terms thereof.
11. Force Majeure. No party will be responsible for any delay or failure in performance under this Agreement (except for the payment of monies) to the extent that such delay or failure is caused bycircumstances beyond such party’s reasonable control, includingact of God, fire, flood, explosion, wide spread utility outage, war, internet communication disruptions, embargos, government requirement, civil, or military authority, national security incident, act or omission of carriers, or other similarcircumstances (each, a “Force Majeure Event”).If a Force Majeure Event occurs, then the affected party will give prompt written notice to the other parties stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay as soon as reasonably possible and minimize the effects of such Force Majeure Event. Any unaffected party may terminate this Agreement if a Force Majeure Event by another party continues substantially uninterrupted for60 consecutive days or more.
12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever.
13. Publicity. No partywillissue a press release or other similar publicity regarding this Agreement without the other parties’ prior written approval, which may not be unreasonably withheld.
14. Interfaces. To the extent Customer requests HST to build an interface between Customer’s system and/or the Software (each, an “Interface”) and a third party vendor’s system (“Vendor”), in this Agreement or in addendum to this Agreement, Customer acknowledges and agrees that (i) the build is at Customer’s request, and (ii) completion of an Interface will permit Customer’s protected health information (“PHI”) to move between HST and the Vendor. Customer hereby expressly authorizes the movement of Customer’s PHI as described in (ii) above. Customer (x) represents and warrants to HST that (A) Customer and Vendor are parties to a business associate agreement that permits the flow of Customer’s PHI between HST and Vendor and (B) Customer will notify HST immediately if such business associate agreement is terminated, and (y) will indemnify HST for any Losses incurred by HST that arise out of the Interface or Customer’s failure to notify HST of the termination of its business associate agreement with Vendor.
15. Exclusion. As of the Effective Date, HST is not named as an excluded entity or individual on the “List of Excluded Individuals/Entities” of the Department of Health and Human Services Office of the Inspector General.
16. Non-employment. During the Term of the applicable Order Form and for a period of twelve (12) months following the termination of this Agreement, each party agrees not to, without the prior written consent of the other affected party, employ, contract for services with, solicit for employment on its own behalf or on behalf of any third party, or have ownership in any entity which employs or solicits for employment, any individual who (i) was an employee of the other affected party or its parent, affiliate or subsidiaries at any time during the preceding twelve (12) months, or (ii) was materially involved in the provision of the HST Services or SGH Services, as applicable, hereunder on behalf of such other affected party. Notwithstanding the foregoing, upon any termination of this Agreement, Customer may re-hire or contract with any individual who was employed by or contracted with Customer on the Effective Date, and who was hired by SGH on or after such date. Each party agrees that the other parties do not have an adequate remedy at law to protect their rights under this Section and agrees that the non-defaulting affected party will have the right to injunctive relief from any violation of this Section.
17. Non-exclusive. The parties agree that the SGH Services being provided under this Agreement are being provided by SGH on a non-exclusive basis. Nothing herein shall be deemed to restrict any party from providing services or developing any products, solutions or offerings that might be deemed competitive with those of the other parties hereunder, provided that no Confidential Information of the other parties is used in developing or providing the same.
18. Access to Records. During the Term of the applicable Order Form and for four (4) years following its expiration, upon request, HST will make available to the Secretary of the Department of Health and Human Services (the “Secretary“) and its authorized representatives this Agreement and all other books, documents, and records as are necessary to certify the nature and extent of the costs incurred by Customer in purchasing the HST Services. If HST provides HST Services through a subcontract worth $10,000 or more over a 12-month period, the subcontract will also contain a clause permitting access by the Secretary and its representatives to the books and records of the third party.
19. Compliance with Laws. Each party agrees to comply with all applicable laws in the performance of its obligations under this Agreement.