Master Service Terms 07.01.2019 – 08.04.2021

1. Terms of Service. The Agreement includes CareServ’s then-current Applicable Use Policy (“AUP”), as CareServ may amend it from time to time. Each of the Proposals, these Service Terms, the Schedules, and the AUP are incorporated by this reference herein. These Service Terms set forth the terms and conditions by which CareServ shall deliver and Customer shall accept the services, licenses, and equipment provided by CareServ to Customer (each specific service, license and/or provision of equipment, a “Service”).
2. Details of Service. Details of each Service ordered by Customer, including Customer’s requirements for each Service, are detailed in CareServ’s Proposal referencing these v and in schedules applicable to each Service so ordered (each, a “Schedule”).
3. Effective Date of Orders. The Proposal becomes binding only when signed by both parties or when Customer transmits to CareServ a request for Service, which CareServ acknowledges and accepts in writing (including electronically). The parties may enter into agreements for additional Services from time to time.
4. Order of Priority. In the event of a conflict between or among the terms of documents relating to a Service, the following order of priority will govern, except where the specific terms of a document provide otherwise: (i) the Proposal; (ii) any applicable Schedule; then (iii) the Service Terms.
5. Third Party Service Providers. The customer agrees and understands that, from time to time, CareServ may engage third party service providers (“TPSPs”) to provide certain additional services to Customer. Customer further acknowledges that, although CareServ may invoice Customer on behalf of a TPSP, (i) CareServ invoices solely as a convenience to Customer and the TPSP; (ii) invoicing in no way creates an affiliation between CareServ and such TPSP; and (iii) invoicing does not render CareServ a partner, joint venturer or agent of such TPSP.
6. The Internet. For purposes of the Agreement, the “Internet” shall mean the global computer communications network.
7. Server. For purposes of the Agreement: (i) in the case of a purchase of hardware or support services provided to Customer by CareSesrv, “Server” shall mean the hardware owned by CareServ; (ii) in the case of Hosted Services, “Server” shall mean the equipment owned by CareServ and (iii) in the case of Colocation Services, “Server” shall mean the hardware owned by Customer and/or used by Customer’s end user.

1. Acceptance by CareServ. Subject to the terms of the Agreement, by its execution or written approval of the Proposal, CareServ agrees to provide and support the Services outlined in such Proposal.
2. Date of Service. For each Service ordered, the parties will agree upon a target date on which that Service is intended to be operational (the “RSD”). The parties agree and acknowledge that any such date is meant to be a goal only and is not a binding obligation of CareServ. The “Service Commencement Date” for each Service is the date on which CareServ notifies Customer (by writing or electronic transmission) that such Service is available for Customer’s use, unless Customer notifies CareServ in writing within forty-eight (48) hours of its non-acceptance of such Service on the basis that agreed technical specifications for the applicable Service have not been met. If Customer so notifies CareServ, CareServ will conduct further tests of the Service, and, if CareServ finds a defect, a new Service Commencement Date will be established as the date on which CareServ notifies the Customer (by writing or electronic transmission) that such Service is available for Customer’s use without such identified defect(s). If CareServ fails to find a defect in the Service during re-testing, the original Service Commencement Date will remain unchanged. Notwithstanding anything to the contrary herein or in any other part of the Agreement, any Customer use of a Service other than for testing purposes (even if following notice of non-acceptance) shall be deemed as acceptance of such Service.
3. Delay of Commencement of Service. If Customer or Customer’s third-party vendors or agents is/are solely responsible for any delay, including any delay caused by changes made to the Proposal by Customer, CareServ may charge Customer for any additional, actual costs incurred by CareServ due to such delay, and CareServ will amend the SOW date as necessary. In all other cases of delay, the Project Managers for the Service will modify the SOW.
4. Service Availability.
   1. Subject to the terms and conditions of the Agreement, CareServ shall use its commercially reasonable efforts to provide its Hosted and Transit Services for twenty-four (24) hours a day, seven (7) days a week throughout the term of the applicable Agreement and guarantees Service Availability greater than or equal to 99.9%. “Service Availability” shall mean the ability of the Customer and its end users to access a Site via the Internet. Subject to the terms of subsections (iii) and (iv), below, if Service Availability falls below 99.9% in any given month, then: (a) for every outage lasting for at least 30 minutes but less than 60 minutes, CareServ will provide Customer with one Service Credit; and (b) for every outage lasting for 60 minutes or more, CareServ will provide Customer with one Service Credit per 60 minute period of such outage. “Service Credit” means an amount equal to 1/30th of the applicable MRC (as defined in Section 8 below) concerning the affected Site for the month in which the Service Availability guarantee is breached.
   2. Notwithstanding anything to the contrary in the Proposal or Schedule, the Service Availability guarantee shall not be deemed to be breached, and no remedy shall be available to Customer hereunder (a) if Customer has not paid any undisputed amounts due under the Agreement (the parties agreeing not to dispute any amounts owed unreasonably); or (b) to the extent any of the following causes such breach: (1) a failure of applications or software code owned or licensed by Customer or provided to CareServ by Customer; (2) a failure or delay by CareServ testing agent to report data relating to the service performance metrics set forth in the Proposal, including any failure or delay caused by false-positive data point readings; (3) a failure of any service or product other than the Services (including the failure of any other service or product provided to Customer by CareServ or any affiliate of CareServ, which failure shall be governed any service level warranty set forth in the terms or agreement applicable to such service or product); (4) force majeure events as defined under the Agreement; (5) any act or omission of Customer or any third party, including, without limitation, Customer’s agents, contractors or vendors, that causes CareServ to be unable to meet the Service Level guarantee, including, without limitation, failing to take any remedial action in relation to a Service as recommended by CareServ, or otherwise preventing CareServ from doing so; (6) Customer’s negligence or willful misconduct, which may include Customer’s failure to follow agreed- upon procedures; (7) any scheduled maintenance periods when Customer has been informed of such maintenance and any emergency maintenance; (8) Customer’s account, during the period in question, violating the AUP; or (9) Customer not opening a support ticket to report any specific service performance issue.
   3. The customer must submit claims for Service Credits no later than thirty (30) calendar days after the last day of the month in which the applicable failure of the Service Availability guarantee occurred. Each claim must include the following information: (a) Customer name; (b) Customer contact name and contact information; (c) date and beginning/end time of outage; (d) a report from a measurement tool stating the basis for the outage; and (e) the specific CareServ support ticket number opened in relation to the performance issue and brief description of the characteristics of the outage. Customer must submit the required information by written, electronic notice to billing@gocareserv.com. Approved credits will be applied to the Customer’s invoice within sixty (60) days of the Customer’s credit request submission.
   4. THE SERVICE AVAILABILITY GUARANTY OUTLINED IN THIS SECTION SHALL APPLY ONLY TO THE SERVICES AND DOES NOT APPLY TO ANY OTHER SERVICE. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY CARESERV TO PROVIDE THE SERVICES DESCRIBED HEREIN AND ANY BREACH BY CARESERV OF THE SERVICE AVAILABILITY GUARANTEE SET FORTH HEREIN. NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY HEREIN OR ANYWHERE ELSE IN THE AGREEMENT, THE MAXIMUM AMOUNT OF SERVICE CREDITS CARESERV SHALL ISSUE TO CUSTOMER FOR ANY HOSTED SERVICE IN ANY ONE MONTH SHALL BE THE MONTHLY RECURRING CHARGES UNDER THE PROPOSAL APPLICABLE TO THE SERVICES.
5. Technical Requirements for Services. Customer agrees to comply with the applicable hardware, software and other professional and pre-setup requirements for Customer’s use of the Services as established by CareServ from time to time, and Customer agrees to use the Services and any CareServ Materials (as hereinafter defined) in accordance with CareServ’s then-current documentation (which may be in written or electronic form). Customer may not resell the Services. The customer acknowledges that the Customer’s use of the Services will require Internet access, which shall be provided to Customer as part of the Services hereunder in consideration for the fees set forth on the Proposal.
6. Customer Support.
   1. CareServ will provide Customers with technical assistance by email or other Internet-based communication concerning the access and use of the Services and the identification and reporting of problems and errors with the Services. CareServ will respond to Customer within a reasonable time from a request placed by Customer during CareServ’s regular operating hours, 8:30 a.m. to 5:30 p.m., Eastern Standard Time, Monday through Friday, holidays excepted, unless otherwise stated in the Proposal.
   2. On the same terms, CareServ will provide “2nd Tier” support concerning access to the Site by Customer’s end users via the Services. In this regard, the Customer shall be responsible for routine troubleshooting and intake of all issues and questions of end users related to the Site. The customer (or its designated service providers) shall then make commercially reasonable efforts to address and to correct all issues or problems of its end users. If, after making such reasonable efforts, Customer or its service provider cannot correct an error or problem related solely to the Services or CareServ Materials, Customer shall notify CareServ, and CareServ shall assist Customer or its service provider (not the end user) in diagnosing and correcting such error or problem. In no event will CareServ be required to provide support or maintenance services directly to an end user of the Customer.

1. CareServ reserves the right to modify its Network, system configuration, and routing configurations. CareServ may, in its sole discretion and without liability, change and/or modify the features and functionalities of a Service or modify or replace any hardware or software in the Network or in equipment used to deliver any Service over the Network, provided that such acts do not have a material adverse effect on the applicable Service. “Network” means the telecommunications network and undersea or terrestrial fiber optic systems owned, operated or otherwise licensed for use by CareServ from time to time and offered to Customer from time to time by CareServ for the carriage of Customer’s traffic or other Services under the Agreement.
2. CareServ may, upon such notice as is reasonably practicable under the circumstances, perform scheduled or emergency maintenance (including temporary suspension of a Service) as necessary to maintain or modify the Network, the CareServ Equipment (defined below) and/or the Services. Service suspensions for scheduled or emergency Network modification or preventative maintenance shall not be counted as outage time unless explicitly stated otherwise in the Schedule applicable to the affected Service. “CareServ Equipment” means any hardware and software and any other tangible equipment and intangible computer code contained therein provided by CareServ for use by Customer according to the Agreement.

Also, any other obligations of Customer under the Agreement, Customer shall:

1. Comply with all provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”), as may be modified from time to time, and with CareServ’s DMCA policies and procedures.
2. Provide to CareServ, its agents or suppliers reasonable access to the Customer Equipment (defined below), facilities and locations as necessary to install, provide and maintain the Services, Network, CareServ Equipment, and Customer Equipment, as applicable. “Customer Equipment” means any computer hardware, not including stored data, and other tangible equipment (including, without limitation, telecommunication equipment) owned or otherwise controlled by the Customer.
3. Provide network functionality and any other equipment and facilities required to support the Services’ configurations and to connect Customers to the Services.
4. Ensure that all of the Customer Equipment used in connection with the Services performs according to the applicable manufacturer’s published technical specifications and applicable interface specifications defined for the Services. CareServ may disconnect any Customer Equipment from the CareServ Equipment and/or the Network if, in CareServ’s reasonable opinion, such equipment poses a danger of personal injury or damage to CareServ’s employees, agents, subcontractors or property or will materially impair any Service or the Network. Except as may be provided explicitly in the Proposal or a Schedule, CareServ shall have no obligation to install, maintain, or repair any Customer Equipment.
5. Participate as requested in any testing procedures and provide technical support services and a secure and safe environment to any of CareServ’s employees, agents or subcontractors working on Customer’s premises for installation, testing or maintenance of the Services.
6. Obtain, as required by law or per the terms of the Agreement, any necessary permission or cooperation of a telecommunications network provider or other relevant people for the connection or maintenance of Customer Equipment.
7. Use the Services only per the terms of the Agreement.
8. Take reasonable steps to ensure that Customer, its clients, and other third party authorized end users do not interfere with or disrupt other users of the Services or the Network.
9. Obtain all required licenses and permits relating to Customer’s use of the Services, the resale (requires the express written consent from CareServ) of the Services or their use by Customer’s clients or other third-party authorized end users.
10. Comply with any and all laws, directives, regulations and conventions, and with any public policy related laws, that may be applicable to the use of the Services by Customer, its clients or any other third party authorized end users or relating to the provision of those Services by Customer to its clients or other third party authorized end users, including, without limitation, all laws and regulations regarding the use of the Services to distribute any unlawful or infringing material.

The customer acknowledges that CareServ exercises no control over the content of the information available on the Internet or accessed through the Network. Customer agrees that it is solely Customer’s responsibility to ensure that the information it and third parties (including, without limitation, Customer’s users) access through Customer’s use of a CareServ Service complies with all applicable laws and regulations and the AUP, which AUP CareServ may update from time to time. CareServ’s AUP is available at CareServ Legal Schedules, or such other website as CareServ may maintain and designate from time to time. By accepting the Proposal and using any CareServ Service, including the acquisition of equipment, Customer expressly acknowledges and agrees that it has read and agrees to the terms of CareServ’s most recent AUP then published and shall comply with all future modifications to it, upon receipt of notice thereof.

1. Grant of License by CareServ. Subject to the terms and conditions of the Agreement, CareServ shall grant to Customer a limited, nonexclusive, nontransferable, revocable license during the duration of the Agreement to use certain of CareServ’s materials (including, without limitation, software (in object code form only), development tools or utilities, data, documentation or information developed or provided by CareServ or its suppliers) that may be furnished to or used by Customer under the Agreement for use with any applicable Service (“CareServ Materials”) solely to support Customer’s use of the each such Service ordered by Customer.
2. No Right to Use. Customer may not use the name, logo, trademarks, service marks or other proprietary indicia of CareServ (the “Marks”) without CareServ’s prior, written approval, including, without limitation, using the Marks (or any of them) to identify CareServ as the supplier or source of the Services provided to Customer hereunder. The customer shall not publish or use any advertising, sales promotions, press releases, or other publicity that uses the Marks without CareServ’s prior, written consent.
3. CareServ shall not publish or use any advertising, sales promotions, press releases or other publicity that uses Customer’s name, logo, trademarks, service marks or other proprietary indicia of Customer without Customer’s prior, written consent, except that CareServ may list Customer as a customer.
4. Ownership of CareServ Intellectual Property. CareServ and its suppliers expressly retain, and Customer hereby waives any claim that it may have had or has to, title and ownership in and to all worldwide intellectual property rights in and to the Services, the CareServ Materials, any documentation related to or provided with the CareServ Technology (defined below) and Network and any modifications, adaptations, derivative works, and enhancements made thereto. Except as expressly outlined in the Agreement, no express or implied license, moral rights, or other rights of any kind is granted to Customer regarding the CareServ Materials, Services or the CareServ Technology. Customer shall not, without CareServ’s prior, written consent: (i) reverse engineer, disassemble, decompile, recompile, update or modify the CareServ Materials, or any part thereof; (ii) create derivative works based on the CareServ Materials; (iii) reproduce or make copies of the CareServ Materials or any portion thereof; (iv) sublicense, provide access to, distribute or otherwise transfer the CareServ Materials to any other person or entity; (v) remove any identification or notices of any proprietary or copyright restrictions from any CareServ Materials, related documentation or support or training material; or (vi) compile or use the CareServ Materials or any part thereof for the purpose of any activities that violate any laws or regulations, including, without limitation, any anti-spamming laws and regulations. In addition to the preceding, the Customer will comply with all terms and conditions packaged with or accompanying any third party software furnished to Customer under the Agreement. The customer agrees that CareServ may crawl or otherwise monitor the external interfaces of the CareServ Materials to verify Customer’s compliance with the Agreement. Customers may not attempt to block or otherwise interfere with such crawling and monitoring. “CareServ” means CareServ’s proprietary technology, including the Services, the Software (in source and object forms), software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secrets and any related intellectual property rights throughout the world (whether owned by CareServ or licensed to CareServ from a third party) and also including any derivatives, improvements, enhancements or extensions of CareServ Technology conceived, reduced to practice, or developed during the term of the Agreement by either party.

1. Except as otherwise expressly provided in the Agreement, as between the parties, Customer shall be solely responsible for providing, updating, uploading and maintaining the Site and any and all files, pages, data, works, information or materials on, within, displayed, linked or transmitted to, from or through the Site or the Services, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, the content of any bulletin boards or chat forums, metatags, domain names (including those provided by Customer or registered on behalf of Customer in connection with the Services) and text, and further including all updates, upgrades, modifications and other versions of any of the foregoing, other than the CareServ Materials (the “Customer Content”). As between the parties, the Customer will manage, renew, create, delete, edit, and otherwise control the Customer Content. The customer agrees that it is the Customer’s sole responsibility to ensure that the information it and third parties (including, without limitation, Customer’s end users) access through the Internet and Customer’s use of the Services complies with all applicable laws and regulations and the AUP.
2. Customer grants to CareServ a non-exclusive, worldwide and royalty-free license to copy, display, use and transmit on and via the Server and the Internet the Customer Content, solely for the benefit of Customer and per CareServ’s performance or enforcement of the Agreement. The customer agrees that CareServ may transmit and disclose the Customer Content to third parties per Customer’s directions.
3. As between CareServ and Customer, Customer retains title and ownership in and to all worldwide intellectual property rights in and to the Customer Content and any modifications, adaptations, derivative works, and enhancements made to it, but specifically excluding any of the Marks that may be included or embodied in the Customer Content.

1. By its execution or submission to CareServ of the Proposal, Customer expressly agrees to pay CareServ for the Services set forth therein, during both the Initial Term listed in the Proposal and all Renewal Terms, without offset or deduction for any claims or otherwise.
2. Customers may commit to a minimum usage amount (“Committed Usage”) or a minimum monthly recurring charge (“MRC”), or both, for a Service for the Initial Term (the “Commit Period”). Such Committed Usage, MRC and Commit Period may be renewed, superseded or modified by the execution, by both parties, of a subsequent Proposal setting forth such amended terms.
3. CareServ invoices in advance once per month on the first (1st) day of each month for all Support Services, including Managed Services, Hosted Services, Colocation Services, Transit Services and Hardware as a Service (including WiFi as a Service and Cloud Services), provided to Customer under all proposals then in effect by and between CareServ and Customer. CareServ requires that Customers remit a deposit of fifty percent (50%) for all Project Work and Purchased Equipment due upon receipt of invoice at the time order is placed before items will be ordered by CareServ and remit remaining payment upon completion or delivery, as applicable. CareServ requires that Customer remit first and last month’s payments for all recurring charges, including Cloud Services, Hardware-as-a-Service, WiFi-as-a-Service, and Managed Services due upon receipt of invoice at the time order is placed before items will be ordered by CareServ and remit remaining payment upon completion or delivery, as applicable
4. After the Initial Invoice, CareServ invoices (i) monthly in advance for any MRC, and (ii) monthly in arrears for Usage Charges. The “Usage Charge” for a particular month shall be an amount (if positive) equal to (v) the sum of all of the Per Service Usage Charges (as defined hereafter) for all Services provided to Customer under the Proposal during such month, less (w) the MRC invoiced under the Proposal for such month (if any). The “Per Service Usage Charge” for each Service shall mean the total fees incurred by Customer with respect to such Service, including, without limitation, any professional services fees. CareServ reserves the right to invoice on a pro rata basis for any part of a calendar month to allow either: (x) for subsequent invoices to be calculated and paid on a calendar monthly basis or (y) for the end of the Term to be on a date that is not the last day of the month. Unless CareServ terminates the Agreement or any Service outlined in the Proposal without cause or due to the termination of a third party license under which CareServ was then operating, all Customer prepays are NON- REFUNDABLE AND NOT SUBJECT TO EXCHANGE.
5. CareServ will charge then-current rates, subject to change;
   • CareServ will have an annual price increase based on the Consumer Price Index (CPI) up to five percent (5%);
   • Shipping charges at standard rates at the time of shipping.
6. Customer shall pay to CareServ all charges and related fees due for the Services according to the prices and terms listed in the Proposal or applicable Statement of Work (“SOW”) or Schedule, together with all reasonable fees or costs for third party products and services CareServ procures on behalf of Customer, to the extent approved by Customer in writing. All prices listed in the Proposal or applicable SOW or Schedule remain in effect during the Initial Term. CareServ reserves the right to change (x) upon thirty (30) days’ prior, written notice to Customer, any fees it charges Customer for any Service during a Renewal Term (y) and/or at any time based on a change in law, rule or regulation, increased power costs or similar circumstances that materially increases the prices or other terms of delivery of any Service. In each case, the Customer’s continued use of such Service as of the first day of the Renewal Term or following the notice period, as applicable, shall constitute its acceptance of the changed fee. Alternatively, the Customer may terminate the Agreement by providing written notice to CareServ within fifteen (15) days of receiving notification of the adjusted price.
7. CareServ allots Only to Customer solely, the data usage per device amounts outlined in the Proposal. To the extent that any of the Customer’s devices exceed the permitted usage allotment, the Customer shall pay to CareServ a Data Charge of $.03 per MB.
8. To the extent that Customer cancels the Proposal, or any Service set forth therein, after execution thereof but prior to CareServ (i) delivering any equipment, Customer shall pay CareServ a Restocking Fee of twenty-five percent (25%) of the canceled material; or (ii) performing any Service, Customer shall pay to CareServ a Service Cancellation Fee of twenty percent (20%) of the total fees scheduled to be paid for such cancelled Service pursuant to the Proposal; each within ten (10) days of such cancellation.
9. Except as otherwise outlined in a Schedule or the Proposal concerning a particular Service, all fees are due within fifteen (15) days of the date of the invoice therefor. Acceptance by CareServ at any time of less than the full payment due from the Customer shall not be a waiver of any of its rights to collect the remainder due. Any invoiced charges not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is less. In addition to the foregoing and without prejudice to CareServ’s other rights and remedies under the Agreement, at law or equity, if Customer is delinquent in its payment, CareServ may, in CareServ’s sole and absolute discretion do any one or more of the following: (i) terminate the Agreement pursuant to its terms; (ii) in whole or in part suspend providing any one or more Services to Customer until CareServ receives payment in full; (iii) require other assurances to secure Customer’s payment obligations hereunder; (iv) charge an administrative fee of $100 for each reversed, declined or insufficient payment; (v) charge an administrative and collection fee of $250 for every thirty (30) days in which CareServ does not receive refund; and (vi) (a) charge actual attorney’s fees and expenses incurred; or (b) 15% of the amount outstanding for attorney’s fees, the greater of whichever is allowable under law.
10. To secure any balance owed to CareServ, Customer expressly grants CareServ a security interest in all property acquired by, or supplied to, any Facility of, Customer which is maintained by and/or serviced by CareServ during the then-current Term of the Agreement, which security interest CareServ may perfect by the filing of a UCC-1 financing statement.
11. The customer acknowledges that CareServ charges a service fee of up to five percent (5%) for payments remitted by credit card. The customer also expressly agrees that a cancellation, reversal or contest of a credit charge for any reason is a default hereunder for which CareServ has an automatic right to and shall receive from Customer liquidated damages of the amount so reversed or challenged. The customer also expressly agrees that the Customer’s obligation of amounts due hereunder and the right of CareServ to recover the same shall survive the termination of the Agreement.
12. All fees charged by CareServ concerning the Services are exclusive of taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction, for all of which Customer is responsible, except for taxes based on CareServ’s net income.

1. Term. The Agreement shall be effective upon the Effective Date and shall continue in full force and effect until the termination of the last Service under the Proposal or any additional services added via a duly executed SOW or Schedule between the parties. The term for each Service will commence on the date set in the Proposal or applicable SOW or Schedule and shall continue for the initial term (“Initial Term”). For all Hosted Services, the Initial Term is thirty-six (36) months. For all Managed Services, Colocation Services, Transit Services and other recurring Services (other than the Hosted Services), the Initial Term is twenty-four (24) months. The term of each Service set forth in the Proposal or applicable SOW or Schedule shall renew automatically for additional terms, each equal in length to the Initial Term (each such period a “Renewal Term”), unless one party notifies the other party in writing of its intent not to renew not less than sixty (60) days prior to the end of the then-current Term.
2. Termination for Cause. Either party may terminate any Service immediately upon written notice to the other party (and CareServ may, in its sole discretion, suspend the provision of Services under the Proposal) if the other party: (i) commits a material breach of the Agreement and fails to cure such breach within seven (7) days after receiving written notice of the same or as otherwise set forth in the Agreement; (ii) becomes the subject of an involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors which is not dismissed within thirty (30) days of filing; or (iii) commits a material breach of the Agreement that is incapable of remedy, including, without limitation, Customer’s or Customer’s end users’ breach of the DMCA, the terms of the AUP or any of the representations, warranties and covenants set forth in the Agreement. Additionally, CareServ may terminate the Agreement immediately upon written notice to Customer (x) if Customer makes available Customer Content (defined below) that violates the intellectual property rights of any third party; or (y) breaches the Agreement more than twice during any applicable Term. At any time after CareServ commenced providing any applicable Service during the then-current Term hereof or thereof, then Customer shall pay to CareServ an Offboarding Fee of Two Thousand Five Hundred Dollars ($2,500) within ten (10) days of Customer’s written notice of termination to CareServ, after which time, CareServ shall have sixty (60) days to effectuate a complete Offboarding of Customer’s data. Customer agrees that is difficult to estimate cost for offboarding accurately and that the Offboarding Fee provided for in this Subsection is not a penalty, but are a reasonable estimate of the probable costs CareServ will incur in such event.
3. Termination without Cause. Either party may terminate the Agreement without cause, upon sixty (60) days prior, written notice to the other, at any time after CareServ commenced providing any applicable Service during the then-current Term hereof or thereof, then Customer shall pay to CareServ an Offboarding Fee of Two Thousand Five Hundred Dollars ($2,500) within ten (10) days of Customer’s written notice of termination to CareServ, after which time, CareServ shall have sixty (60) days to effectuate a complete Offboarding of Customer’s data. CareServ may also cancel or suspend all or any portion of any Service, upon reasonable notice to Customer if the Service, or any part thereof, is a violation of any applicable law or regulation or any CareServ license in any jurisdiction, or is no longer permitted under any of the same. Customer agrees that is difficult to estimate cost for offboarding accurately and that the Offboarding Fee provided for in this Subsection is not a penalty, but are a reasonable estimate of the probable costs CareServ will incur in such event.
4. Early Termination. Notwithstanding Subsection (c), if Customer terminates the Agreement or any applicable Service, other than for cause, at any time after CareServ commenced providing any applicable Service during the then-current Term hereof or thereof, then Customer shall pay to CareServ an Offboarding Fee of Two Thousand Five Hundred Dollars ($2,500) within ten (10) days of Customer’s written notice of termination to CareServ, after which time, CareServ shall have sixty (60) days to effectuate a complete Offboarding of Customer’s data. The customer shall also pay CareServ an Early Termination Fee of fifty percent (50%) of the total fees scheduled to be paid for the balance of any canceled recurring Service according to the Proposal or applicable SOW or Schedule within ten (10) days of such cancellation. Customer agrees that the injury CareServ will suffer upon Customer’s breach or early termination is difficult to estimate accurately and that the Offboarding Fee and Early Termination Fee provided for in this Subsection are not a penalty, but are a reasonable estimate of the probable loss and costs CareServ will suffer in such event.
5. Termination of Third Party Services. The customer acknowledges that CareServ’s ability to provide certain of the Services is subject to various licenses or other agreements (each a “Third Party Service Agreement”) between CareServ and its third-party suppliers. In the event of the expiration or termination of any applicable Third Party Service Agreement, CareServ will use commercially reasonable efforts to obtain alternative suppliers to avoid suspension or disruption in the affected Services. If CareServ is unable, for any reason, to obtain an alternative or replacement Third Party Service Agreement, CareServ may terminate the affected Services upon written notice to Customer without any liability to Customer or CareServ. CareServ will use its best efforts to give Customer at least sixty (60) days prior written notice of the termination or expiration of a Third Party Service Agreement governing CareServ’s ability to deliver any Services to Customer, or any other condition arising under such Third Party Service Agreement that is likely to adversely affect Customer’s use of such Services or CareServ’s ability to provide such Services. If CareServ terminates any Service pursuant to this Subsection (e), and Customer has prepaid for such Service under the Agreement, then CareServ will, except for as set forth in Subsection (d) and after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Customer within forty-five (45) days after the date of termination.
6. Upon the effective date of termination of any Service or the Agreement with or without cause: (i) CareServ will immediately cease providing the applicable Service(s), and Customer shall immediately stop using such Services; (ii) Customer shall return to CareServ all CareServ property and equipment and remove from all CareServ Facilities its property and equipment; (iii) all licenses granted hereunder with respect to the terminated Services will immediately terminate; and (iv) all payment obligations of Customer under the Proposal for Services provided through the date of termination will immediately become due. In addition to the foregoing, within thirty (30) days of termination or completion of the relationship between CareServ and Customer, each party will return or certify the destruction of all Confidential Information (defined below) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting recordkeeping requirement. Notwithstanding the preceding, to the extent that any term herein or contained in any other SOW, Schedule, or document in effect between the parties regarding PHI (as defined in Section 11 below) conflicts with the Business Associate Agreement between the parties, the Business Associate Agreement shall control.
7. Within ten (10) days of expiration or earlier termination of the Agreement, Customer must notify CareServ whether to (i) disable Customer’s account and delete the Customer Content; or (ii) provide Customer with limited access to its account for a period of forty-five (45) days after the date of such expiration or termination (the “Retention Period”) for the sole purpose of permitting Customer (or its authorized agent) to retrieve the Customer Content, in which case Customer will reimburse CareServ if there are any applicable costs; provided, however, that CareServ shall not grant Customer any such access unless CareServ has received all amounts due from Customer through the effective date of termination no later than ten (10) days after such date. If the Customer does not provide CareServ with timely notice or payment as herein set forth, CareServ will retain the Customer Content per subsection (i). Following the expiration of the Retention Period, CareServ will disable the Customer’s account and delete the Customer Content. The customer agrees that other than as described in this Section, and, notwithstanding any other term in the Agreement, CareServ has no obligation to continue to hold or return the Customer Content. The customer further agrees that CareServ has no liability whatsoever for the deletion of the Customer Content according to these terms.
8. Except as otherwise specified in a notice of termination, termination of any Service shall not serve to terminate any other Services or agreements between the parties, nor the parties’ respective obligations thereunder or hereunder. The definitions herein and all representations, warranties, and covenants herein shall survive any expiration or earlier termination hereof.

1. Each party acknowledges that it will have access to certain “confidential information” of the other party, as defined in O.C.G.A. § 13-8-51(3), (collectively, “Confidential Information”), which shall expressly include, but not be limited to, CareServ Materials, CareServ Technology, Customer Technology, Customer Materials, and the terms and conditions of the Agreement, but expressly excluding all Customer Content. “Customer Technology” means Customer’s proprietary technology, including Customer’s Internet operations design, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), trade secrets and any related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party), together with any derivatives, improvements, enhancements or extensions of Customer Technology conceived, reduced to practice or developed during the term of the Agreement solely by Customer without reference to the CareServ Technology. Each party agrees that it will not use in any way, for its account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, the Agreement or applicable law, nor disclose to any third party (except as permitted or required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable steps) as it takes to protect its Confidential Information. The obligations of this Section shall apply during and after the term of the Agreement.
2. The receiving party may disclose Confidential Information according to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when reasonable and permitted, reasonable prior, written notice sufficient to permit the disclosing party to contest such disclosure.
3. In the event of a violation or threat of a violation by a party, directly or indirectly, of the terms of Section 12(a), the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under the Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.
4. If Customer discloses personal data to CareServ (“Personal Data”), Customer (i) agrees that CareServ or its affiliate(s) may process such Personal Data consistent with applicable law and regulation, only for providing the Services to Customer or for purposes connected with the subject matter of the disclosure or business relationship between the parties; (ii) acknowledges that such processing may include the transfer of such Personal Data to CareServ’s affiliates worldwide and/or its storage in a local or foreign database; and (iii) agree that Customer will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned.

The parties will comply with the terms of CareServ’s Business Associate Agreement and CareServ’s Third Party Vendor Agreement, as applicable, each relating to the Health Insurance Portability and Accountability Act of 1996 and its implementation regulations (“HIPAA”), and with the rules pertaining to Protected Health Information (“PHI”) and electronic PHI as a “Business Associate” of Customer, each as defined in HIPAA.

1. Each party represents and warrants that: (i) it has the legal right to accept and enter into the Agreement, and, in particular, the Proposal, any Schedule or SOW and each ancillary agreement so effectuated, by and between the parties and to perform its obligations hereunder; and (ii) the performance of its duties hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties.
2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN EACH SCHEDULE, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND CARESERV, ITS AFFILIATES, VENDORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED, DIRECT, INDIRECT AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. CARESERV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
3. FURTHERMORE, CARESERV MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY OR SUITABILITY OF ANY GOODS OR SERVICES PROVIDED BY A TPSP AND EXPRESSLY DISCLAIMS ANY AND ALL LOSS, DAMAGE, EXPENSE, AND/OR LIABILITY INCURRED BY CUSTOMER AS A RESULT OF ANY ACT OR OMISSION OF A TPSP.
4. CareServ represents and warrants that it will implement reasonable and appropriate technical and organizational measures in accordance with the standards generally prevailing in the Internet hosting industry to help secure the Customer Content against accidental or unlawful loss, access, or disclosure and will maintain a disaster recovery plan in effect at all times during the term of the Agreement. Customer agrees that the obligations of CareServ under this Section are CareServ’s only responsibility with respect to the security and handling of Customer Content, except as otherwise required by applicable law or as otherwise may be agreed to by CareServ in writing; and are in lieu of, and not in addition to, the confidentiality terms herein set forth with respect to the Customer Content.
5. Customer represents and warrants that (i) the performance of its obligations and use of the Services by Customer will not violate any applicable laws or the AUP; (ii) the Site and Customer Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Customer owns the Customer Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the Customer Content on and within the Site. The representations and warranties made by the Customer in this Section will be automatically reaffirmed each time it submits Customer Content to CareServ.
6. Customer further represents and warrants that, to the extent applicable to Customer, it will (i) maintain a Designated Agent for takedown notices pursuant to the terms of the DMCA; (ii) take expeditious action to remove from the Site and the Services allegedly infringing material contained in the Customer Content and of which it actually becomes aware; and (iii) respond and act expeditiously to CareServ’s requests with respect to any network abuse, actual or potential violations of the AUP and actions needed to be undertaken for Customer’s or CareServ’s compliance with the DMCA, including, without limitation, promptly providing CareServ with any end user information requested by CareServ, to the extent known to or held by Customer. Without limitation of the preceding, Customer expressly grants CareServ the right to remove, without prior notice to Customer, any Customer Content that, in CareServ’s sole opinion, does not comply with the AUP or could otherwise subject CareServ to potential liability. CareServ will use reasonable efforts to notify Customer following any removal of any Customer Content from the CareServ’s Service’s network.
7. The customer also represents and warrants that, if any virus or destructive element is found in or furnished with any Customer Content, the Customer will use best efforts, upon learning that such a situation exists, to eliminate the virus or destructive element immediately. Customer will notify CareServ as to the existence of any such virus or harmful component immediately upon discovery thereof, and CareServ will have the right to take any steps it deems necessary to eliminate the virus or destructive element and to be reimbursed by Customer for its costs relating to any such commercially reasonable steps.
8. CUSTOMER EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT CUSTOMER’S SOLE REMEDIES FOR CARESERV’S BREACH OF ANY REPRESENTATION AND/OR WARRANTIES SET FORTH IN THIS SECTION 11 ARE (i) TERMINATION OF THE AGREEMENT PURSUANT TO THE TERMS SET FORTH HEREIN, AND (ii) RETURN OF ALL UNUSED FEES AND DEPOSITS PAID TO CARESERV FOR ANY TERMINATED SERVICES.

1. Customer acknowledges and agrees that, except as otherwise set forth on an applicable Schedule or SOW, (i) Customer shall bear sole responsibility for adequate security, protection and backup of the Customer Content, Customer Technology and Customer Equipment; and (ii) CareServ disclaims all responsibility and liability to Customer for unauthorized access or use, corruption, deletion, destruction and loss of any Customer Content, Customer Technology and Customer Equipment.
2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CARESERV, ITS AFFILIATES, VENDORS OR SUPPLIERS BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION OR ARISING OUT OF ANY DEFECT OF OR FAILURE WITH THE DELIVERABLES, THE SERVICES OR THE AGREEMENT, EVEN IF CARESERV, ITS AFFILIATES, VENDORS AND/OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
3. IN NO EVENT WILL CARESERV, ITS AFFILIATES, VENDORS AND/OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY USERS UNDER THE AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY CARESERV UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
4. Neither party shall be liable for nor be responsible to the other for any delay or failure to perform under the Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party. If either party is unable to perform under the Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate the affected Service(s) upon written notice to the other party.

1. By Customer. Customer will indemnify, defend and hold CareServ, its affiliates, vendors and suppliers, and their respective owners, directors, officers, employees, agents, successors and assigns (each a “CareServ Indemnitee”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and expenses) payable to a third party (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against a CareServ Indemnitee alleging (i) copyright infringement or any manner of violation of any intellectual property or other proprietary rights of a third party, defamation, publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or violation of data protection legislation, based on (x) the Customer Technology, the Customer Content and/or any other content or information transmitted by Customer or its clients or end users using the Service; (y) the use or publication of any communications or information sent by Customer or its clients or end users using the Services; and (z) Customer’s misuse of any Service; and (ii) negligence and/or willful misconduct of Customer.
2. By CareServ. CareServ will indemnify, defend and hold harmless Customer, its affiliates and their respective owners, directors, officers, employees, agents, successors and assigns (each a “Customer Indemnitee”) from and against any and all Losses resulting from any Action brought by any third party against a Customer Indemnitee arising from (i) the infringement or misappropriation by CareServ of any intellectual property right relating to the Services or the CareServ Technology; or (ii) gross negligence or willful misconduct of CareServ; provided, however that CareServ shall have no obligation under this Sub-Section 14(b) to the extent such Action is caused by (v) Customer’s or a third party’s modification of a Service; (w) CareServ’s adherence to Customer’s instructions; (x) infringing items of Customer’s or third party’s origin, design or selection, including, without limitation, Customer Content; (y) the operation, combination or use of Service, without CareServ’s prior, written consent, with products or services provided by Customer or third parties; and/or (z) Customer’s negligence, willful misconduct or intentionally wrongful conduct. THIS SECTION STATES CARESERV’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
3. Procedures. Each party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any Action (provided, however, that failure to satisfy this condition shall relieve a party of its indemnification obligations only to the extent the indemnifying party is actually prejudiced thereby); (ii) being able to, at its option and expense, control the defense of such Action (provided, however, that the indemnifying party shall not, without the prior, written consent of the indemnified party, settle any Action or otherwise consent to the entry of any order or judgment in any Action if such settlement, order or judgment admits any liability of the indemnified party or requires the indemnified party to take or to refrain from taking any action, other than the payment of damages); (iii) permitting the indemnified party to participate in the defense of any Action, at the indemnified party’s option and expense; and (iv) receiving full cooperation of the indemnified party in the defense thereof. If Customer notifies CareServ of any Action against Customer, CareServ’s indemnification obligations shall be further conditioned on CareServ having the option, in addition to other options,: (x) to permit any party obligated to indemnify CareServ in such circumstances to defend or settle, at such party’s own expense, such a claim or suit; (y) to procure a license sufficient to continue offering the Services (including, without limitation, Customer’s use thereof); and/or (z) to terminate the applicable Service (provided that in the event of terminating the applicable Service, CareServ shall continue to remain liable for its indemnification obligations).

1. During the term of the Agreement, Customer shall not, either directly or indirectly, solicit, divert or entice, or attempt to solicit, divert or entice any person employed by CareServ or engaged as an independent contractor of CareServ (a “Solicited Person”) for the purpose of having such person performs duties of any nature for another person or entity. During the one (1) year period after termination of the Agreement, Customer agrees that Customer will not, either directly or indirectly, on Customer’s own behalf or in the service of or on behalf of others, solicit, divert or entice, or attempt to solicit, divert or entice, any Solicited Person actually employed or engaged as an independent contractor by CareServ during the term hereof and with whom Customer had direct and substantial contacts during the term of the Agreement to perform activities for Customer that are substantially similar to those activities provided by or on behalf of such Solicited Person to CareServ.
2. In the event of a violation or threat of violation by Customer, directly or indirectly, of this Section, CareServ will have the right, and in addition to all other remedies available to it at law, in equity and under the Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction, without any requirement that CareServ submit proof of economic damages or that CareServ post a bond or other security. The customer acknowledges that a violation of this Section would cause irreparable harm and that all other remedies are inadequate.
3. Further, and without limitation of any other remedy available to CareServ, if Customer violates the terms of this Section, then Customer shall be liable to CareServ for a placement fee equal to twenty percent (20%) of the Solicited Person’s annual salary or compensation as of the date of termination of such Solicited Person’s employment or engagement with CareServ. Such amount shall be due and payable to CareServ upon demand therefor. The customer agrees that the injury CareServ will suffer upon Customer’s breach of the terms of this Section is challenging to estimate accurately and that the amount provided for in this Section is not a penalty, but is a reasonable estimate of the probable loss CareServ will suffer in such event.

1. The Agreement constitutes the exclusive statement of all mutual understandings between the parties concerning the subject matter hereof, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written.
2. The headings in these Service Terms are provided for convenience only and will not affect its construction or interpretation.
3. The parties and their respective personnel are and shall be independent contractors, and neither party under the Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
4. The Agreement may only be amended in writing by the mutual consent of the parties. No waiver of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing concerning, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy or future exercise thereof.
5. If any provision of the Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
6. Neither the Agreement nor Customer’s obligations or rights hereunder may be transferred or assigned by Customer without CareServ’s prior, written consent. Any attempted assignment, transfer or other disposition by Customer in violation of this Section will be null, void and of no force and effect. CareServ may freely assign the Agreement without the Customer‘s consent.
7. The Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties. There are no third party beneficiaries to the Agreement.
8. All notices under the Agreement shall be in writing and shall be delivered personally, including by courier service; by certified mail, via tracking method; or electronically, each by a method providing verification of delivery by receipt, and shall be effective upon receipt if delivered personally, otherwise three (3) days after dispatch to the party to whom such notice shall be directed. Notice to CareServ shall be appropriately addressed to “Chief Executive Officer,” and to Customer at the last known address provided to CareServ by Customer. Either party may, by notice given per the preceding, change its respective address listed on the Scope of Work (SOW) for the Agreement.
9. be directed to the parties at the respective addresses as either party may, from time to time, designate by notice to the other party.
10. The Agreement and all obligations of the parties hereunder and thereunder shall be interpreted, construed, and enforced per the laws of the State of Georgia, without regard to any conflict of laws rules or analyses. Any action or proceeding arising from or relating to the Agreement must be brought in a state or federal court having jurisdiction in Gwinnett County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non-conveniens. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from application to the Agreement. If and to the extent that any products, software or technical information provided by CareServ to Customer under the Agreement are or may be subject to any applicable export laws and regulations, Customer agrees that it will not use, distribute, transfer or transmit such products, software or technical information (even if incorporated into other products) except in compliance with such export laws and regulations (or licenses or orders issued pursuant thereto). Time is of the essence hereof.
11. Any portion of the Agreement entered into by the parties may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The parties may sign all or any portion of the Agreement and deliver the same via facsimile or electronic transmission (with the originals to follow) or otherwise per this Section.