Client wishes to engage AutoMedSys to provide software, support and services focused on the providing physician office administration and workflow support, patient services and billing. AutoMedSys has the knowledge and expertise to perform the Services. The parties wish to set forth in this Agreement the terms and conditions under which AutoMedSys shall provide software licenses and perform the Services for Client. In consideration of the foregoing and of the mutual covenants and agreements contained in this Agreement, the parties, intending to be legally bound, agree as follows:
1. AutoMedSys shall be responsible for providing the software licenses and Services set forth in the Scope of Services
2. PRICING, INVOICING, AND PAYMENT - Client shall pay AutoMedSys according to the schedule set forth in the Pricing Terms, AutoMedSys shall invoice Client for the Services on a monthly basis. The invoices shall be due within 15 days of receipt.
3. REPRESENTATIONS AND WARRANTIES A. AutoMedSys represents, warrants, and covenants that: (1) all Services will: (i) be rendered in a timely, professional and workmanlike manner that conforms to the highest level of generally accepted industry standards and procedures for similar services; and (ii) be performed in accordance with this Agreement and all Schedules; (2) each of its personnel assigned to perform Services under this Agreement has the proper skill, training, and background so as to be able to perform in a competent and professional manner; and (3) neither it nor any of its personnel is currently debarred, suspended, or otherwise excluded by Government Agencies from receiving, bidding on or participating in, U.S. Federal Contracts. B. Any delays in or failure of performance by AutoMedSys under this Agreement shall not be considered a breach if and to the extent such delay or failure is caused by occurrences or circumstances beyond the reasonable control of AutoMedSys, including, but not limited to, acts of God, embargoes, governmental restrictions, work stoppages, strikes, riots, wars or other military action, civil disorder or sabotage, fires, power surges or failures, earthquakes, or acts or omissions of the U.S. Postal Service. If data is conveyed by Client to AutoMedSys via computer tapes, in the absence of negligence or misconduct by AutoMedSys, AutoMedSys shall not be liable for the loss of any information on Client’s tapes and shall not be responsible in any manner for errors in data furnished by Client.
4. LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO THE PARTY, AND REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, INCLUD¬ING, BUT NOT LIMITED TO, ANY CLAIM OR ACTION ALLEGING FAILURE TO EXERCISE REASONABLE CARE OR FAILURE TO ACT IN GOOD FAITH.
5. INDEMNIFICATION. AutoMedSys and Client shall indemnify, defend and save the other and the other’s affiliates and their officers, directors, employees and agents harmless from and against any and all losses, claims, suits, damages, liabilities and expenses, including reasonable attorneys fees (collectively, “Claims”) arising out of or attributable to such party’s breach of this Agreement, negligence or willful misconduct related to this Agreement. Neither party shall be obligated hereunder to defend, indemnify, or hold harmless the other party from any such Claims to the extent arising from the other party’s breach of this Agreement, negligence or willful misconduct. A party seeking indemnity shall give the promptest practical written notice to the indemnifying party of the claim, demand or other circumstance prompting the demand. The indemnifying party shall have the right but not the obligation to control the defense and settlement of the claim for which it indemnifies, with counsel of its own choice. Notwithstanding the foregoing, the indemnifying party shall not enter into any settlement agreement, consent judgment, or admission of liability on behalf of the indemnified party without the indemnified party’s express prior written consent. The indemnified party shall provide the indemnifying party reasonable assistance in the defense of the claim at the indemnifying parties expense. The indemnified party may otherwise participate in its own defense, but at its own expense, and subject to the indemnifying party’s ultimate right of control. The obligations to indemnify set forth in this Section 6 constitute the parties’ entire obligations to indemnify one another.
6. Solely with respect to its own Intellectual Property, AutoMedSys shall have and retain all right, title and interest, including ownership of copyrights, patents, trade secrets and other intellectual property rights in and to methods, processes, techniques, strategies, materials, images, prototypes, software, source and object code and related materials (the “Intellectual Property”) that are used or developed by AutoMedSys, or its agents, during the term of this Service Agreement, including any modifications to, or derivative works or enhancements of, materials owned or licensed by either Client or AutoMedSys and any tools, utilities, prototypes, models, processes, methodologies and other such materials that are developed, enhanced or improved during the term of this Agreement by AutoMedSys or any of its agents or employees, which relate to the performance of the Services, or any modification of the services to be provided under this Agreement. Client acknowledges that all of this work is AutoMedSys’s Intellectual Property, none of this work is “work for hire” and that it has no rights to the Intellectual Property developed by AutoMedSys and its agents, principals, employees, subcontractors and delivery partners.
7. Each Party will protect the other Party’s Intellectual Property and confidential information with the same care and diligence as it would use to protect its own intellectual property and confidential information. Each Party will take all necessary and appropriate steps to safeguard the other’s Intellectual Property and confidential information by employees, former employees, vendors, affiliates and others to whom they have directly, or indirectly, made confidential information available. Information that is available to the public through no breach of confidentiality obligations, that was independently developed, or that was previously possessed will not constitute confidential information.
8. GENERAL CONFIDENTIALITY. Except for such longer periods as may be required under Section 8 below, all data and information obtained by one party from the other party in connection with this Agreement as well as the terms of this Agreement shall be considered confidential information during the initial term and any extensions, and for a period of two (2) years thereafter and shall not knowingly be disclosed to any third party. For purposes of this paragraph, “confidential information” shall not include information which (i) was known to either party prior to receipt hereunder, and such knowledge can be documented; (ii) is later obtained from a third party without an obligation of secrecy; (iii) becomes knowledge of the general public through no fault of the parties; or (iv) is released from this provision by mutual agreement of the parties. In no event shall either party use confidential information except to perform this Agreement.
10. COMPLIANCE WITH LAWS. Without limiting any other provision in this Agreement, each party represents and warrants to the other that it has complied and will comply with all applicable federal, state, or local laws, regulations, and codes in performing their respective obligations under this Agreement, including, without limitation, the Social Security Act, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, the Americans with Disabilities Act, Title VII of the Civil Rights Act, HIPAA and the Privacy Regulations and Security Regulations (“Applicable Laws”). Failure by either party to comply with any Applicable Law shall be considered a material breach of this Agreement.
11. INDEPENDENT CONTRACTORS. It is understood that Client and AutoMedSys are independent contractors engaged in the operation of their own respective businesses. Neither party is, or is to be considered as, the agent or employee of the other party for any purposes whatsoever. Neither party has authority to enter into contracts or assume any obligations for or on behalf of the other party or to make any warranties or representations for or on behalf of the other party.
12. SEVERABILITY. It is the intention of the parties that the provisions of this Agreement will be enforceable to the fullest extent permissible under applicable laws, and that the unenforceability of any provisions under such laws will not render unenforceable, or impair, the remainder of this Agreement. If any provisions hereof are deemed invalid or unenforceable, this Agreement will be deemed amended to delete or to modify, as necessary, the offending provisions and to alter the bounds thereof in order to render it valid and enforceable.
13. FORCE MAJEURE. No delay in or failure of performance by either party under this Agreement will be considered to be a breach hereof if and to the extent that an occurrence or occurrences beyond the control of the party affected caused such delay or failure of performance. The foregoing will not be considered to be a waiver of either party’s obligations under this Agreement, and as soon as such occurrence or occurrences cease, the party affected thereby will promptly fulfill its obligations under this Agreement, which accrued during such occurrence or occurrences.
14. PARTICIPATION IN FEDERALLY FUNDED HEALTHCARE PROGRAMS. Each party to this Agreement represents that (i) it has not been convicted of a criminal offense related to health care, or (ii) is not currently listed by a federal agency as debarred, excluded or otherwise ineligible for participation in federally funded health care programs. Either party shall notify the other in writing within five (5) days of any change in this representation or if circumstances change to render this representation false during the term of this Agreement. Such change in circumstances shall constitute cause by the other party to immediately terminate this Agreement. For purposes of this paragraph, a party is defined as the entities entering into this contract, and/or its principals, directors and officers.
15. DISPUTES A. All disputes, controversies or claims arising out of or under this Agreement or its performance shall be resolved as set forth in this Section. B. Any dispute which is not resolved by good faith discussions between the parties shall be submitted to arbitration, which shall be exclusive, final, binding, and conducted by one arbitrator in accordance with the rules of the American Arbitration Association (“AAA”) applicable to commercial disputes. The decision of the arbitrator shall be final and in writing setting forth the award and the reasons therefore. All hearings in the arbitration shall be held in CLIENT CITY / or Atlanta, GA. Depositions shall not be permitted in any arbitration unless the arbitrator decides otherwise upon good cause shown by a party. Each party shall bear its own fees and expenses, including attorneys’ fees. The fees and expenses of the arbitrator and the cost of the arbitration shall be borne equally by the parties. Any decision of the arbitrators may be entered as a judgment in any court of competent jurisdiction and may be enforced as such in accordance with the provisions of the award. This agreement to arbitrate shall be specifically enforceable by the parties.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement and supersedes all prior written or oral agreements between Client and AutoMedSys with respect to the subject matter hereof. No modification of this Agreement will have any force or effect unless such modification is in writing and signed by authorized representatives of all parties. This Agreement is valid only when signed by authorized representatives of both parties and both parties have signed within ten (10) days of each other.
18. WAIVER. No waiver of any breach or failure by either party to enforce any of the terms or conditions of this Agreement at any time will, in any manner, limit or waive such party’s right thereafter, to enforce and to compel strict compliance with every term and condition hereof.
19. ASSIGNMENT. All rights and obligations of either party may be assigned to its parent, subsidiary or successor corporation, provided that nothing contained herein shall release the assigning party from any obligations hereunder. Any other assignment hereunder shall require the consent of the other party, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of all the parties to this Agreement and their permitted successors and assigns.
20. COUNTERPARTS. This Agreement may be executed in one or more counterparts, including by facsimile, all of which shall be considered one and the same agreement. The Agreement shall become effective when each party has signed and delivered to the other party at least one such counterpart.
21. TERM AND TERMINATION AutoMedSys has the right to terminate this License Agreement and Licensee’s right to use its Software upon any material breach by the Client. Licensee agrees to return to Licensor or to destroy all copies of the Software upon termination of the License. Term and Termination is further described in Exhibit A.
22. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia applicable to agreements made and to be performed entirely within such State, without regard to the conflict of law principles of such State.
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