Secure Medical Professional Messaging

This NoticeMed™ Subscription Agreement (“Agreement”) is a legally binding agreement between you (“you”) and Health Service, LLC, a Minnesota limited liability company ("we" or "us").

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT USE THE SERVICES.

We have developed the Services for use by health care professionals to facilitate secure professional communications. You are a licensed health care professional who desires to use the Services to carry out such communications.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, we and you agree as follows:

1. Definitions. Certain terms shall be defined as follows:
1.1. "Authorized Location" means those Health Locations that have access to send and receive messages with you via the Services.

1.2. "Authorized Staff" means those health care personnel and staff who are individually set up and have access to send and receive messages with you via the Services.

1.3. "Confidential Information" means any information concerning our business, financial affairs, current or future products or technology, trade secrets, workforce, customers, or any other information that is treated or designated by us as confidential or proprietary, or would reasonably be viewed as confidential or as having value to our competitors. Confidential Information shall not include information that we make publicly available or that becomes known to the general public other than as a result of a breach of an obligation by you. Confidential Information does not include individuals' health information.

1.4. "Health Location" means those computer work stations located in health care or similar facilities that have been set up to send and receive messages via the Services. (E.g. Hospital nursing stations).

1.5. "HIPAA" means the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and the Security Rule, as amended from time to time.

1.6. "HITECH Act" means the Technology for Economic and Clinical Health Act of 2009, and regulations promulgated thereunder.

1.7. “Order Form” means the web pages and documents used for placing orders by you hereunder. Order Forms shall be deemed incorporated into this Agreement by reference.

1.8. "Policies" means our rules, policies and procedures for access to and use of the Services, as changed from time to time and as posted electronically on our Internet web site.

1.9. "Privacy Rule" means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.

1.10. "Protected Health Information" has the meaning given it in the Privacy Rule, and includes all individually identifiable health information concerning your patients that you and Your Senders provide to the Services.

1.11. "Security Rule" means the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR part 160 and part 164, subparts A and C.

1.12. "One-Way Senders" means those individuals that send you messages via the URL assigned to you by us that permits others to send you messages through the Services.

1.13. "Your Senders" means those Authorized Locations, Authorized Staff, and One-Way Senders that have access to send you messages through the Services.

1.14. "Services" means a web-based mailbox for one-way messaging, two-way messaging, or other services to which you have been granted access as specified on an Order Form. From time to time, we may provide upgrades or modifications to the Services. Any upgrades or modifications are considered to be part of the Services, as defined and used within this Agreement.

1.15. "User ID" means a username assigned to a user of the Services.

1.16. "Your Health Information" means Protected Health Information that you or Your Senders enter into the Services.

2. Services.
2.1. Grant. Subject to the terms and conditions of this Agreement, we grant to you and you accept a non-exclusive, personal, nontransferable, limited right to have access to and to use the Services solely for your internal use, and a non-exclusive, personal, nontransferable, limited license to use any computer software furnished by us for access to or use of the Services, for sole the purpose of obtaining the Services solely for your internal use.

2.2. Ownership. We retain all right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all logos and trademarks reproduced through the Services. This Agreement does not grant you any rights in or to the Services or any of its components except for the limited rights to use the Services expressly granted by this Agreement.

2.3. Restrictions. You shall not, and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form; (b) use the Services to develop any software or other technology having the same primary function as the Service; (c) sell, rent, lease, loan, assign, distribute, license, or sublicense the Services or any part thereof; (d) use the Service in a manner that is contrary to applicable law, rule or regulation or in violation of any third party rights of privacy, publicity or intellectual property or proprietary rights; (e) publish, post, upload or otherwise transmit any viruses, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, information or property of another; (f) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information in the Services except in accordance with accepted practices; (g) make the Services, in whole or in part, available to any other person, entity or business except as permitted in this Agreement; (h) modify the Services or associated software or combine the Services with any other software or services not provided or approved by us; (i) use the Services in a manner that interferes with other users' use of the Services; or (j) use the Services in any manner that violates our Policies.

3. Verification. Your use of the Services is subject to verification by us of your identity and credentials as a health care practitioner and to your ongoing qualification as such. You agree that we may use and disclose your personal information for such verification. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. We may terminate your access to or use of the Services at any time if we are unable at any time to determine or verify your qualifications or credentials.

4. Your Responsibilities.
4.1. Professional Responsibility. You will be solely responsible for the use of the Services by you and Your Senders. You are solely responsible for the information that you make available through the Services and for the professional services you provide. We have no liability for the consequences to you or others of your use of the Services.

4.2. Compliance with Law. In your use of the Services and Your Health Information, you will comply with all applicable laws, rules, and regulations, including those relating to maintenance of privacy, security, and confidentiality of patient and other health information and the prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages, or otherwise unlawful material. You will not undertake or permit any unlawful use of the Services, or take any action that would render the operation or use of the Services by us or any other user of the Services unlawful.

4.3. Safeguards. You will implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Services from unauthorized access, use or alteration. Such safeguards shall comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you to transmit, store and process electronic health information through the use of the Services. You will immediately notify us of any breach or suspected breach of the security of the Services of which you become aware, or any unauthorized use or disclosure of information within or obtained from the Services, and you will take such action to mitigate the breach or suspected breach as we may direct, and will cooperate with us in investigating and mitigating the breach. You will adopt and maintain reasonable and appropriate security precautions for User IDs to prevent their disclosure to or use by unauthorized persons.

4.4. Your Senders. You may permit Your Senders to use the Services, subject to the terms of this Agreement. You are responsible for granting and revoking messaging rights to Your Senders. You will; (a) ensure each of your Authorized Staff uses a unique User ID when using the Services; (b) train all members of Your Senders in the requirements of this Agreement and the Policies relating to their access to and use of the Services, and ensure that they comply with such requirements; and (c) immediately revoke access to the Services upon the termination of employment of any member of your Authorized Staff, or of your withdrawal of authorization for any such person to access the Services.

4.5. Authorized Locations. By requesting that a computer work station located in health care or similar facility be set up as a new Health Location, you represent and warrant that you have verified that such facility is subject to HIPAA and has appropriate administrative, physical and technical safeguards to protect information within the Services from unauthorized access, use or alteration. By connecting to a Health Location for the sending and receiving of messages via the Services (thus becoming your Authorized Location), you represent and warrant that you have verified that such facility is subject to HIPAA and has appropriate administrative, physical and technical safeguards to protect information within the Services from unauthorized access, use or alteration.

4.6. No Third-Party Access. Except as required by law and permitted under this Agreement, you will not permit any third party to have access to or to use the Services without our prior written agreement. You will promptly notify us of any order or demand for compulsory disclosure of health information if the disclosure requires access to or use of the Services. You will cooperate fully with us in connection with any such demand.

4.7. Equipment. You are responsible to acquire, install, configure and maintain all hardware, software and communications systems necessary to access the Services.

4.8. Backups; Retention. WE STORE YOUR HEALTH INFORMATION AND INFORMATION IN THE SERVICES ACCORDING TO THE NUMBER OF DAYS YOU SELECTED UPON REGISTRATION, OR THAT YOU SUBSEQUENTLY SELECTED. WE WILL NOT STORE YOUR HEALTH INFORMATION AND INFORMATION IN THE SERVICES FOR MORE THAN 60 DAYS AFTER A MESSAGE HAS BEEN SENT, OR AS OTHERWISE SET FORTH IN OUR POLICIES. You are responsible for maintaining any copies of information you enter and store in the Services, including without limitation, Your Health Information.

5. Fees and Charges.
5.1. Fees. You will pay the charges and fees for the Services (the "Service Fee"), as described on the NoticeMed website and in the applicable Order Form(s). Except as otherwise specified herein or in an Order Form, Service Fees are based on services purchased and not actual usage, payment obligations are noncancelable, and Service Fees paid are non-refundable. Except as otherwise specified in the applicable Order Form, Service Fees are based on monthly periods that begin on the date you register for the Services and continue on a month-to-month basis thereafter. The Service Fee may change from time to time. Current fees and charges will be displayed on www.noticemed.com.

5.2. Invoicing and Payment. You will provide us with valid and current credit card information. You authorize us to charge such credit card for all Service Fees. Such Service Fees shall be paid in advance on a monthly basis. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.

5.3. Overdue Charges. If any Service Fees are not received by us by the due date or if any payments you have made to us are reversed or charged back based on your credit/debit card transaction, we may suspend all Services until you have made alternative payment arrangements satisfactory to us. Any reversed or charged back payments, until paid in full, shall bear interest at a rate of 1.5% per month from the reversal/chargeback date until paid. In addition, we may charge an additional chargeback fee of $20.00, as liquidated damages to compensate us for administrative expenses related to the reversal/chargeback.

5.4. Taxes. All charges and fees shall be exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes now in force or enacted in the future, and you agree to pay any tax (excluding taxes on our net income) that we may be required to collect or pay now or at any time in the future and that are imposed upon the sale or delivery of items and services purchased under this Agreement.

5.5. Other Charges. You are responsible for any charges you incur to use the Services, such as telephone and equipment charges, and fees charged by third-party vendors of products and services.

6. Term; Termination; Modification; Suspension
6.1. Term. This Agreement commences on the date you accept it and continues until terminated by either party pursuant to the notice procedure specified below. Except as otherwise specified in the applicable Order Form, Services commence on the date you register for the Services and continue on a month-to-month basis thereafter, unless either party gives the other notice as set forth below.

6.2. Termination. You may terminate one or any of your Services at any time by sending us an email at service@noticemed.com or via your My Account page or its equivalent. We may terminate this Agreement or a Service at any time for convenience upon fifteen (15) days prior written notice to you. If you commit any material breach of this Agreement, we may terminate any Services or this Agreement immediately upon notice to you. We are not required to refund any fees paid or prepaid after such termination. Termination of this Agreement, or of any Services, shall be effective immediately upon notice. We will not be deemed to be in violation of this Agreement unless you have first have given us written notice specifying the nature of the default, and we have failed within thirty (30) days of receipt of the notice either to cure the default or, if cure within such period is not practicable, to be diligently proceeding to cure the default.

6.3. Modification. We may update or change the Services and/or the terms set forth in this Agreement from time to time and recommend that you review the Agreement on a regular basis. We may revise this Agreement from time to time by posting a new version on www.noticemed.com. Revised terms will become effective upon posting thereof (the "Revision Date"). You waive any right to notice of revised terms other than through the www.noticemed.com website, and such waiver will remain in force even if we do provide notice by e-mail or another medium. Your continued use of the Services after any Revision Date will confirm acceptance of revised terms.

6.4. Termination, Suspension or Amendment as a Result of Government Regulation. Notwithstanding anything to the contrary in this Agreement, we have the right, on notice to you, immediately to terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; or (c) if performance of any term of this Agreement by either party would cause it to be in violation of law, or would jeopardize its tax-exempt status.

6.5. Judicial or Administrative Procedures; Credentialing. We may terminate this Agreement immediately upon notice to you: (a) if you are named as a defendant in a criminal proceeding for a violation of federal or state law; (b) if a finding or stipulation is made or entered into that you have violated any standard or requirement of federal or state law relating to the privacy or security of health information is made in any administrative or civil proceeding; (c) you are excluded from participation in a federal or state health care program or (d) you cease to be qualified to provide services as a health care professional, or we are unable to verify your qualifications as such.

6.6. Suspension of Access. We may suspend access to the Services by you or Your Senders immediately pending your cure of any breach of this Agreement, or in the event we determine in our sole discretion that access to or use of the Services by you or Your Senders may jeopardize the Services or the confidentiality, privacy, security, integrity or availability of information within the Services, or that you or your Sender have violated or may violate this Agreement or our Policies, or has jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the Services with any User ID assigned to you or Your Senders. We may terminate the access of any of Your Senders. Our election to suspend the Services shall not waive or affect our rights to terminate this Agreement as permitted under this Agreement.

6.7. Obligations After Termination. Upon termination of this Agreement, your rights to use the Services terminate and we have no obligation to refund to you any prepaid fees. Upon termination for any reason, you will remove all software provided under this Agreement from your computer systems.

7. Use of Information
7.1 Purpose of Services. The purpose of the Services is to facilitate professional communications between you and Your Senders. You authorize us, as your business associate, to use and disclose Your Health Information as follows, subject to the recipient's agreement to comply with our Policies and with applicable laws and regulations relating to the use and disclosure of health information, and subject also to the provisions of section 9:

7.1.1. We will permit access to Your Health Information to you, subject to the retention periods set forth in Section 4.8 and our Policies.

7.1.2. We may provide data aggregation services relating to the health care operations of your health care practice.

7.1.3. We may use Your Health Information for the proper management and administration of the Services and our business, and to carry out our legal responsibilities. We may also disclose Your Health Information for such purposes if the disclosure is required by law, or we obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient, and the recipient notifies us of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, we may permit access to the Services by our contracted system developers under appropriate confidentiality agreements.

7.1.4. We may use or disclose Your Health Information for other purposes, as from time to time described in our Policies; provided that we will not make or permit any such use or disclosure that would violate applicable law or regulation if made by you or your business associate.

7.2. Responsibility for Misuse by Other Users. You acknowledge that in granting access to the Services for the purposes set forth in section 7.1, we will rely on the assurances of the recipients of the information as to (a) their identity and credentials, (b) the purposes for which they are accessing the Services, and (c) the nature and extent of the information to which they will have access. You agree that we will not be responsible for any unlawful access to or use of Your Health Information by any user of the Services resulting from such user's misrepresentation to us, or breach of such user's agreement or our Policies.

7.3. Specially Protected Information. We apply the standards of the Privacy Rule in permitting you access to the Services. You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Health Information may properly be disclosed for the purposes set forth in section 7.1, subject only to the restrictions of the Privacy Rule. In particular, you will: (a) not make available through the Services any information subject to any restriction on use or disclosure (whether arising from your agreement with the individual or under law), other than the general restrictions contained in the Privacy Rule; (b) obtain any necessary consents, authorizations or releases from individuals required for making their health information available through the Services for the purpose set forth in section 7.1; (c) include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Services; and (d) not place in the Services any information that you know or have reason to believe is false or materially inaccurate.

8. Individuals' Rights. You shall be solely responsible for affording individuals their rights with respect to Your Health Information, such as the rights of access and amendment, as applicable. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Information.

9. Business Associate Provisions.
9.1. In maintaining, storing and affording access to Your Health Information in accordance with this Agreement, we will: (a) not use or further disclose the information except as permitted or required by this Agreement or as required by law; (b) use appropriate safeguards and comply, where applicable, with 45 CFR part 164, subpart C with respect to electronic protected health information, to prevent use or disclosure of the information other than as provided for by this Agreement; (c) report to you any use or disclosure of the information not provided for by this Agreement of which we become aware, including breaches of unsecured protected health information as required by 45 CFR Section 164.410; (d) in accordance with Section 164.502(e)(1)(ii) of the Privacy Rule, ensure that any subcontractors that create, receive, maintain, or transmit Your Health Information on our behalf agree to the same restrictions and conditions that apply to us with respect to such information; (e) make available protected health information in accordance with Section 164.524 of the Privacy Rule; (f) make available protected health information for amendment and incorporate any amendments to protected health information in accordance with Section 164.526 of the Privacy Rule; (g) make available the information required to provide an accounting of disclosures in accordance with Section 164.528 of the Privacy Rule. However, you and we expressly agree that the Services are used to carry out treatment and therefore meet the exception as set forth in Section 164.528(a)(1)(i) of the Privacy Rule and that the Services or Your Health Information are not disclosed through an electronic health record as contemplated under 42 USC 17935(c); (h) to the extent we are to carry out your obligation under 45 CFR part 164, subpart E, comply with the requirements of such subpart that apply to you in the performance of such obligation; (i) make our internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by us on your behalf available to the Secretary of the United States Department of Health and Human Services for purposes of determining your compliance with the Privacy Rule; and (j) upon termination we will, if feasible, return or destroy all protected health information (as defined in the Privacy Rule) received from, or created or received by us on your behalf that we still maintain in any form, and retain no copies of such information; or, if such return or destruction is not feasible, extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible.

9.2. We will appropriately safeguard the Your Health Information as follows: (a) we will comply with the applicable requirement of 45 CFR part 164, subpart C; (b) in accordance with 45 CFR Section 164.308(b)(2), we will ensure that any subcontractors that create, receive, maintain, or transmit electronic protected health information on our behalf agree to comply with the applicable requirements of 45 CFR part 164, subpart C by entering into a contract or other arrangement that complies with 45 CFR Section 164.314; and (c) we will report to your any security incident of which we become aware, including breaches of unsecured protected health information as required by 45 CFR Section 164.410.

9.3. As may be required by the HITECH Act:
9.3.1. We will comply with the provisions of the HIPAA Security Rule that are made applicable to business associates by section 13401(a) of the HITECH Act, and by subsequent amendments to HIPAA, with the additional provisions of the HITECH Act relating to security that are made applicable to business associates and incorporated into business associate contracts by section 13401(a) of the HITECH Act, and with the additional provisions of the HITECH Act relating to privacy that are made applicable to business associates and incorporated into business associate contracts by section 13404(a) of the HITECH Act.
9.3.2. We will report to you the discovery of any breach of unsecured Protected Health Information that we access, maintain, retain, modify, record, store, destroy or otherwise hold, use or disclose on your behalf, in compliance with the requirements of Section 13402 of the HITECH Act and the regulations promulgated thereunder (45 CFR Parts 160 and 164, Subpart D), and we will cooperate reasonably with you to investigate and mitigate any such breach, and to provide you with information you need to make any legally required notification to individuals.

9.4. If you determine that we have violated a material term of this Section 9, you shall have the right to terminate this Agreement.

10. Confidential Information
10.1. You may not disclose our Confidential Information to any other person, and you may not use any Confidential Information except for the purpose of this Agreement. Except as otherwise provided in this Agreement, you may not, without our prior written consent, at any time, during or after the term of this Agreement, directly or indirectly, divulge or disclose Confidential Information for any purpose or use Confidential Information for your own benefit or for the purposes or benefit of any other person. You agree to hold all Confidential Information in strict confidence and to take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will disclose Confidential Information only to those individuals who have a need to use it for the purposes of this Agreement. You will inform all such recipients of the confidential nature of Confidential Information and will instruct them to deal with Confidential Information in accordance with the terms of this Agreement. You will promptly advise us in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person, which may come to your attention.

10.2. You agree that we will suffer irreparable harm if you fail to comply with its obligations set forth in this Section 10, and you further agree that monetary damages will be inadequate to compensate us for any such breach.

11. Disclaimer, Exclusion of Warranties, and Limitation of Liability
11.1. Carrier Lines. YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICES WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, "CARRIER LINES") OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.

11.2. No Warranties. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES. WE DO NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION IN THE SERVICES RESULTING FROM ANY USER'S ACTIONS OR FAILURES TO ACT.

11.3. Unauthorized Access; Lost or Corrupt Data. WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA OR INFORMATION BY OTHERS USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA OR INFORMATION THROUGH THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH THE SERVICES.

11.4. Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF WE HAVE BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. WE DISCLAIM ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION OT INTERNET SERVICE PROVIDERS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AGGREGATE FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT FOR THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.

12. Indemnification. You shall indemnify, defend, and hold harmless us and other users of the Services, and our and their affiliates, officers, directors, and agents, from and against any claim, cost or liability, including reasonable attorneys' fees, arising out of: (a) the use of the Services by you or Your Senders; (b) any breach by you or Your Senders of any representations, warranties or agreements contained in this Agreement; (c) the actions of any person gaining access to the Services under a User ID assigned to you or a member of Your Senders; (d) the actions of anyone using a User ID or other unique identifier assigned to you or any member of Your Senders that adversely affects the Services or any information accessed through the Services; and (e) your negligent or willful misconduct, or that of any of Your Senders.

13. Insurance. You will obtain and maintain such policies of general liability, errors and omissions, and professional liability insurance with reputable insurance companies as is usually carried by persons engaged in your business covering the term of this Agreement.

14. Choice of Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Minnesota, without giving effect to its conflicts of law principles. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree and consent to the exclusive jurisdiction of, and venue in, the federal and state courts in Ramsey County, Minnesota.

15. Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.

16. No Assignment. This Agreement may not be assigned or transferred by you without our prior written consent. Except to the extent prohibited in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

17. Force Majeure. Neither party shall be in breach of this Agreement in the event they are unable to perform their obligations under this Agreement as a result of natural disaster, war, emergency conditions, labor strife, the substantial inoperability of the Internet, the inability to obtain supplies, or other reasons or conditions beyond their reasonable control; provided, however, if such reasons or conditions remain in effect for a period of more than sixty (60) days, either party may terminate this Agreement without further liability to the other party.

18. Remedies. Injunctive or other equitable relief shall be a remedy available to either party in the event of a breach of any provision of this Agreement by the other party, but such remedy shall not be the exclusive remedy available to the parties.

19. Severability. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.

20. Nature of Relationship. Nothing contained in this Agreement should be deemed to constitute either party being an agent, representative, partner, joint venture or employee of the other party for any purpose. Neither party has the authority to bind the other or to incur any liability on behalf of the other, nor to direct the employees of the other. As independent contractors, each shall be separately responsible for the payment of their income or other taxes. In addition, each party shall be separately responsible for carrying workers’ compensation insurance on themselves and their employees and agents.

21. Language. This Agreement has been prepared in English, and English is the controlling language with respect to all matters concerning this Agreement. Any and all notices or communications related to this Agreement must be in English.

22. Notices. We may give notices under this Agreement by means of general postings on our website and/or the Services, electronic mail to your e-mail address on record in your account information, or by written communication sent by first class mail or pre-paid post to your address on record in your account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or twenty-four (24) hours after sending (if sent by email). You may give notice to us at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the following address: Health Service, LLC, 2300 St. Clair Avenue, Saint Paul, Minnesota 55105. Notice to us shall be deemed given when received by us.

23. Waiver. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing. Any waiver by either party of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.

24. Entire Agreement. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement. Except as otherwise provided in this Agreement, no amendments shall be valid unless made in writing and signed by the parties to this Agreement.

25. No Third-Party Beneficiaries. Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.

26. Advice of Counsel. Each party acknowledges: (a) having fully read this Agreement in its entirety; (b) having had full opportunity to study and review this Agreement; (c) having been advised that counsel for us has acted solely on our behalf in connection with the negotiation, preparation, and execution of this Agreement; (d) having been advised that all parties have the right to consult and should consult independent counsel respecting their rights and duties under this Agreement; and (e) having had access to all such information as has been requested.