Standard Contract
Updated February 2023
This Standard Contract (“Agreement”) is between you (“you” or “Customer”) and the publisher (“Publisher”) from which you are procuring Offerings (defined below) and governs your use of Offerings purchased through either Microsoft AppSource or Azure Marketplace (collectively, “Marketplace”).
This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under “Definitions.”
Microsoft has created this template Standard Contract to facilitate a transaction between Publisher and Customer. Both parties acknowledge that Microsoft is not a party to this Agreement, nor in anyway responsible for the parties’ actions or obligations under this Agreement. Microsoft’s relationship with Customer and Publisher is solely governed by Microsoft’s respective agreements with those parties; Microsoft otherwise disclaims all liability resulting from this Agreement (including any Orders).
1.	LICENSE TO OFFERINGS

1.1	License grant. Offerings are licensed and not sold. Upon acceptance of an Order, and subject to Customer’s compliance with this Agreement, Publisher grants Customer a nonexclusive and limited license to use the ordered Offerings. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

Offerings may contain or be provided with components that are subject to open-source software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Agreement.

1.2	Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order, unless renewed. Licenses granted for metered Offerings billed periodically based on usage continue as long as Customer continues to pay for its usage of the Offerings. All other licenses become perpetual upon payment in full.

1.3	End Users. Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Agreement.

1.4	Affiliates. Customer may order Offerings for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Publisher. Customer will remain responsible for all
 
obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s).

1.5	Reservation of Rights. Publisher reserves all rights not expressly granted in this Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement Publisher’s patents or other intellectual property in the device itself or in any other software or devices.

1.6	Restrictions. Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to):

a.	copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so;

b.	install or use any third-party software or technology in any way that would subject Publisher’s intellectual property or technology to any other license terms;

c.	work around any technical limitations in an Offering or restrictions in Documentation;

d.	separate and run parts of an Offering on more than one device;

e.	upgrade or downgrade parts of an Offering at different times;

f.	use an Offering for any unlawful purpose;

g.	transfer parts of an Offering separately; or

h.	distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to a third party.

1.7	License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or
(2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (A) a divestiture of all or part of an Affiliate or
(B) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Offering and render any copies unusable. Customer must notify Publisher of a License transfer and provide the transferee a copy of this Agreement and any other documents necessary to show the scope, purpose, and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.

1.8	Feedback. Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such
 
Feedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).

2.	PRIVACY

2.1	EU Standard Contractual Clauses. To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by the Publisher at the applicable URL for such terms or as otherwise communicated to Customer.

2.2	Personal Data. Customer consents to the processing of Personal Data by Publisher and its Affiliates, and their respective agents and Subcontractors, as provided in this Agreement. Before providing Personal Data to Publisher, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.

2.3	Processing of Personal Data; GDPR. To the extent Publisher is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection (“Processing of Personal Data; GDPR”):

a.	Processor and Controller Roles and Responsibilities. Customer and Publisher agree that Customer is the controller of Personal Data and Publisher is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Publisher is a subprocessor or (b) stated otherwise in any Offering-specific terms. Publisher will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Publisher that Customer’s instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller.

b.	Processing Details. The parties acknowledge and agree that:

i.	the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;
 
ii.	the duration of the processing will be for the duration of the Customer’s right to use the Offering and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement;

iii.	the nature and purpose of the processing will be to provide the Offering pursuant to this Agreement;

iv.	the types of Personal Data processed by the Offering include those expressly identified in Article 4 of the GDPR; and

v.	the categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.

c.	Data Subject Rights; Assistance with Requests. Publisher will make information available to Customer in a manner consistent with the functionality of the Offering and Publisher’s role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request. If Publisher receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with an Offering for which Publisher is a data processor or subprocessor, Publisher will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Offering. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

d.	Use of Subprocessors. Customer consents to Publisher using the subprocessors listed at the applicable Publisher URL or as otherwise communicated to Customer. Publisher remains responsible for its subprocessors’ compliance with the obligations herein. Publisher may update its list of subprocessors from time to time, by providing Customer at least 14 days notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription for the affected Offering without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.

e.	Records of Processing Activities. Publisher will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.

2.4	Security. Publisher will take appropriate security measures that are required by Data Protection Laws and in accordance with good industry practice relating to data security.
 
2.5	Support Data. Publisher may collect and use Support Data internally to provide technical support for the Offering. Publisher will not use Support Data for any other purpose unless otherwise agreed in writing by the parties.

3.	CONFIDENTIALITY

3.1	Non-Disclosure Agreement. The parties will treat all confidential information exchanged between the parties under this Agreement in accordance with the separate nondisclosure agreement (“NDA”) executed by the parties. If no separate NDA is in effect, the following provisions apply to the parties’ exchange of confidential information.

3.2	Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, Support Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation;
(2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services.

3.3	Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.

3.4	Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

3.5	Duration of Confidentiality obligation. These obligations apply: (1) for Customer Data, until it is deleted by Publisher; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

4.	SERVICE LEVEL AGREEMENTS (SLA)

Publisher may offer further availability and support obligations for an Offering. Such service level agreement (“SLA”) will be made available by the Publisher at the applicable URL for such SLA or as otherwise communicated to Customer.

5.	VERIFYING COMPLIANCE
 
5.1	Customer must keep records relating to Offerings it and its Affiliates use or distribution. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Agreement by directing an independent auditor (under nondisclosure obligations) to conduct an audit or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, Customer must order sufficient licenses to cover the period of its unlicensed use. The audits may be conducted more frequently, if required by the party’s auditors and/or regulators, of books and records related to this Agreement. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

5.2	Upon request, Publisher will make available to Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. Customer may request information through a security questionnaire or self-attestation.

6.	REPRESENTATION AND WARRANTIES

6.1	Publisher continuously represents and warrants that:

a.	it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;

b.	its performance will not violate any agreement or obligation between it and any third party;

c.	the Offering will substantially conform to the Documentation;

d.	the Offering will not:

i.	to the best of Publisher’s knowledge, infringe or violate any third party patent, copyright, trademark, trade secret, or other proprietary right; or

ii.	contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and

e.	while performing under this Agreement, Publisher will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws.
6.2	Disclaimer. Except as expressly stated in this Agreement, the Offering is provided as is. To the maximum extent permitted by law, Publisher disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particular
 
purpose, whether arising by a course of dealing, usage or trade practice, or course of performance.

7.	DEFENSE OF THIRD-PARTY CLAIMS

7.1	By Customer. Customer will defend Publisher and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to: Customer’s or any authorized user’s violation of this Agreement or user terms (a “Claims Against Publisher”), and will indemnify Publisher and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Publisher or its Affiliates in connection with or as a result of, and for amounts paid by Publisher or its Affiliates under a settlement Customer approves of in connection with a Claim Against Publisher. Publisher must provide Customer with prompt written notice of any Claims Against Publishers and allow Customer the right to assume the exclusive defense and control of the claim and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.

7.2	By Publisher. Publisher will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that: (i) the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights and
(ii) any violation of applicable law including Data Protection Laws (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Publisher approve of in connection with a Claim Against Customer; provided, however, that the Publisher has no liability if a Claim Against Customer arises from: (1) Customer Data or non-Publisher products, including third-party software; and
(2) any modification, combination or development of the Offering that is not performed or authorized in writing by Publisher, including in the use of any application programming interface (API). Customer must provide Publisher with prompt written notice of any Claim Against Customer and allow Publisher the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting Publisher’s defense and settlement of such matter. This section states Publisher sole liability with respect to, and Customer’s exclusive remedy against Publisher for, any Claim Against Customer.

7.3	Notwithstanding anything contained in the above subsections (a) and (b), (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

8.	LIMITATION OF LIABILITY
 
For each Offering, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings during the term of the applicable licenses, subject to the following:

a.	Subscriptions. For Offerings ordered on a subscription basis, Publisher’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the 12 months before the incident or $500,000, whichever is greater.

For Offerings ordered on a subscription basis, Publisher’s maximum liability to Customer for any unauthorized access, use, or disclosure of Customer Data due to a breach of Publisher’s obligations under Section II(6) (Security), Publisher’s maximum liability to Customer will not exceed two times (2x) the amount Customer paid for the Offering during the 12 month before the incident or $2,000,000, whichever is greater.

b.	Free Offerings and distributable code. For Offerings provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Publisher, Publisher’s liability is limited to direct damages finally awarded up to US$5,000.

c.	No Indirect Damages. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.

d.	Exceptions. No limitation or exclusions will apply to liability arising out of either party’s:
(1) confidentiality obligations under Section 3 (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligation under Section 7; (3) violation of the other party’s intellectual property rights; or (4) gross negligence, willful misconduct, or fraud.

9.	PRICING AND PAYMENT

Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms of Use and applicable Order.

10.	TERM AND TERMINATION

10.1	Term. This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.

10.2	Termination without cause. Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will
 
continue for the duration of the subscription period(s), subject to the terms of this Agreement. Publisher will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.

10.3	Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:

a.	All licenses granted under this Agreement will terminate immediately except for fully- paid, perpetual licenses.

b.	All amounts due under any unpaid invoices will become due and payable immediately. For metered Offerings billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.

c.	If Publisher is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

10.4	Suspension. Publisher may suspend use of the Offering without terminating this Agreement during any period of material breach. Publisher will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary.

10.5	Refund. For Offerings ordered on a subscription basis that are $100,000 or more, if Publisher breaches any of the foregoing warranties and those breaches remain uncured for 30 days, Customer may terminate this Agreement and Publisher will provide Customer a full refund of all fees paid to Publisher.

10.6	Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.

11.	MISCELLANEOUS

11.1	Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:

a.	Order;
b.	this Agreement;
 
c.	Service Level Agreement (SLA); and
d.	Documentation.
11.2	Independent contractors. The parties are independent contractors. Customer and Publisher each may develop products independently without using the other’s Confidential Information.

11.3	Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the services of others.

11.4	Amendments. Unless otherwise agreed in a writing signed by both parties, Publisher will not change the terms of this Agreement, including privacy terms, during the term of this Agreement.

11.5	Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Publisher may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

11.6	Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

11.7	Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

11.8	No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

11.9	Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form.

11.10	Applicable law.

a.	United States and Canada. If you acquired the Offering in the United States or Canada, the laws of the state or province where you live (or, if a business, where your principal place of business is located) govern the interpretation of these terms, claims for breach
 
of them, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles.
b.	Outside the United States and Canada. If you acquired the Offering in any other country, the laws of that country apply.
11.11	Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

11.12	Government procurement rules. By accepting this Agreement, Customer represents and warrants that: (1) it has complied and will comply with all applicable government procurement laws and regulations; (2) it is authorized to enter into this Agreement; and (3) this Agreement satisfies all applicable procurement requirements.
11.13	Compliance with laws. Publisher will comply with all laws and regulations applicable to its provision of the Offerings. Publisher will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to their use of the Offerings.
11.14	Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:

a.	all internal references are to this Agreement and its parties;

b.	all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;

c.	URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;

d.	a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;

e.	“written” or “in writing” means a paper document only, except where email is expressly authorized;

f.	“days” means calendar days;
 
g.	“may” means that the applicable party has a right, but not a concomitant duty,

h.	“partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;

i.	“current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured;

j.	“notify” means to give notice under subsection (i) above; and

k.	a writing is “signed” when it has been hand-signed (i.e., with a pen) or signed via an electronic signature service by a duly authorized representative of the signing party.

12.	DEFINITIONS
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act.
“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data.
“Data Protection Law” means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from use of, the Offering.
“End User” means any person Customer permits to use an Offering or access Customer Data.
 
“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.
“Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.
“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. Offering availability may vary by region.
“Order” means an ordering document used to transact the Offering via the Marketplace. “Personal Data” means any information relating to an identified or identifiable natural person. “Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Subcontractor” means any third party: (1) to whom Publisher delegates its obligations under this Agreement, including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.
“Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from an Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Agreement.
“Use” means to copy, download, install, run, access, display, use or otherwise interact with.


Amendment to Microsoft Marketplace Agreement for Lightbeam Transactable Offerings

This global amendment (“Amendment I” or “Amendment”) to the Microsoft Marketplace Agreement Standard Contract version February 2023 for transactable population health management offerings (“Offerings”) sold through the Microsoft Marketplace by Lightbeam Health Solutions, Inc. (“Lightbeam” or “Publisher”) amends the Agreement, and must be agreed upon by each Customer wishing to purchase Offerings provided by Lightbeam as a Publisher.

The following language is hereby added to § I License To Offerings:

1.	Section 1.1 “License grant” is replaced in its entirety with “Subject to the terms of this Agreement, Lightbeam grants Customer during the Term a non-transferable and non-exclusive license to permit Customer’s End Users to access the SaaS Services for Customer’s internal operations, and to use and implement Lightbeam Software solely for use by End Users to access and use SaaS Services as permitted hereunder. Unless otherwise specifically limited in the Order Form, End User passwords and login IDs for SaaS Services will be provided to Customer in an amount mutually agreed upon by Customer and Lightbeam. Customer agrees to use best efforts to prevent unauthorized access to its login IDs and passwords. 

2.	The following sentence is struck from Section 1.2 “Duration of licenses”: “All other licenses become perpetual upon payment in full.”

3.	Section 1.6 “Restrictions” is replaced in its entirety with “Restrictions. Except to the extent expressly permitted in this Agreement, Customer will not:  

a.	record, video, or capture in electronic form any Software or Services, including without limitation transmitting, transferring or disclosing such content through any means including YouTube or other content sharing services, except for internal training and internal communication purposes;
b.	sell, transfer, lease, assign, sublicense, encumber, distribute or publish any Software or Services; 
c.	use any Software or Services as a service bureau, for outsourcing, for sharing access to any Services with any Third Party, or for otherwise offering or making available the functionality of the Software or Services to any Third Party;
d.	permit any End User or other person to access or use Products or Services using another End User’s ID, login or password or otherwise make an End User’s ID, login or password available to any Third Party;
e.	import, add, modify or delete data in any Software or Service database by any method other than direct data entry through the Software, Service or through a Lightbeam-developed Interface, unless such method is pre- approved in writing by Lightbeam; or
f.	use any Software or Service to process anything other than Customer’s, an Affiliated Practice’s, or an End User’s data.

4.	Section 1.7 “License transfers” is replaced in its entirety with: “License transfers. See Section 11.5 “Assignment.”

5.	The following is added as new Section 1.9: “Monitoring. Although Lightbeam has no obligation to monitor Customer’s use of the Products or Services, Lightbeam may do so and prohibit any use of the Products or Services that may be (or that are alleged to be) in violation of any applicable Law or Lightbeam’s policies. If Lightbeam identifies Product utilization in excess of what is purchased in any Order, Lightbeam at its sole discretion, may invoice for the additional Products or Members.

The following language is hereby added to § II Privacy:

1.	The following sentence is added to the end of Section 2.2 “Personal Data”: “If the Services require Customer to provide to Lightbeam information that is protected under applicable Laws, the parties will enter into a mutually agreed-upon HIPAA Business Associate Agreement.”

2.	The following is added as new Section 2.6 “De-Identified Data. Lightbeam will De-Identify personal data before such data is incorporated into any aggregated Analytics Database. ‘De-Identify’ or “De-Identified’ means to de-identify personal data in accordance with the “safe harbor” requirements of section 164.514(b)(2) of the HIPAA regulations, or in a manner that otherwise meets the requirements of section 164.514. ‘De-Identified Data’ means personal data that has been De-Identified. ‘Analytics Database’ means a data collection derived from De-Identified Data. Customer grants Lightbeam a non-exclusive, worldwide, paid-up, perpetual and irrevocable	right and license to:

a.	Extract, copy, aggregate, process, and create derivative works of De-Identified Data to derive Analytics Databases;
b.	Employ data analytics on the Analytics Database for purposes of developing and providing Data Analytics solutions and other lawful purposes;
c.	Prepare derivative works of the Analytics Databases, and use, execute, reproduce, display, perform, transfer, distribute, and sublicense the Analytics Databases and such derivative works within the Lightbeam customer base;
d.	Generate statistics for marketing purposes; and
e.	Use Customer Data to create metrics for the purpose of analyzing usage and improving the Software or Services or developing return-on-investment information.

Lightbeam will aggregate De-Identified Data with data from a sufficient number of other customers in a manner reasonably designed to prevent Lightbeam or others from using Analytics Databases to analyze the particular characteristics of Customer’s business.

The following language is hereby added to § III Confidentiality:

1.	Section 3.1 “Non-Disclosure Agreement” is replaced in its entirety with “3.1 No Use or Disclosure. Recipient will only use Confidential Information for the purposes of this Agreement and will not reproduce, disseminate, or disclose Confidential Information to any Third Party, except to its employees and authorized representatives (e.g. temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this Section 3.1. Recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. Recipient shall notify Discloser of any breaches of security that result in or are likely to result in disclosure of Discloser’s Confidential Information. 

1.	Section 3.2 “Confidential Information” is replaced in its entirety with “Confidential Information. ‘Confidential Information’ means a Discloser’s non-public information that is marked or identified as confidential.  In all cases where Lightbeam is the Discloser, Confidential Information includes, without limitation, the Lightbeam Technology and Lightbeam’s customer lists, employee lists, and pricing, all of which is hereby deemed marked and identified as confidential.  The Party disclosing Confidential Information is referred to as “Discloser” and the Party receiving Confidential Information is referred to as “Recipient”. Confidential Information does not include information that: (a) is or becomes generally publicly available at or after the time of disclosure through no fault of either Recipient; (b) was known to Recipient free of any confidentiality obligations, before its disclosure by Discloser; (c) becomes known to Recipient free of any confidentiality obligations from a source other than Discloser; or (d) is independently developed by either Recipient without use of Confidential Information.”

2.	Section 3.3 “Protection of Confidential Information” is replaced in its entirety with “Intentionally Blank.”

3.	Section 3.4 “Disclosure required by law” is replaced in its entirety with “Required Disclosure. Recipient may disclose Confidential Information: (a) as approved in writing signed by Discloser; (b) as necessary to comply with any Law or valid order of a court or other governmental body; or (c) as necessary to establish the rights of either Party, but only if, in the case of Sections 3.4(b) or 3.4(c), Recipient (1) promptly notifies Discloser with the particulars of the required disclosure; and (2) gives Discloser all assistance reasonably required by Discloser to enable Discloser to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.

4.	The following is inserted as new Section 3.6: “Disclosure of Agreement Terms. Neither Party shall disclose the terms of this Agreement except as required by Law and only if Discloser uses reasonable efforts to seek confidential treatment for any pricing and other sensitive terms. However, either party may disclose that the Customer is a customer of Lightbeam.

5.	The following is inserted as new Section 3.7: “Government Audits of Customer. If any government agency is required to audit Lightbeam as the result of the provision of Services to Customer, Lightbeam will cooperate to the extent required subject to its lawful actions to protect Lightbeam Confidential Information. Customer will reimburse Lightbeam on a time and materials basis at then-current hourly rates in connection with any such audit.

The following language is hereby added to § VI Representation and Warranties:

1.	Section 6.1(a)(b)(c) are hereby deleted in its entirety and replaced with the following: “General.  Each Party represents and warrants that:

6.1.1	it is duly organized and in good standing under the Laws of the state of its organization;
6.1.2	it has full authority to execute and perform under this Agreement, and such performance will not breach any agreement to which the Party is bound; and
6.1.3	it will comply with all Laws applicable to the subject matter of this Agreement or its performance hereunder.”


2.	New Section 6.1(f) is here by added: “f. Customer Responsibilities”

(i)	General.  Customer will comply, and Customer will use best efforts to cause all Affiliated Practices, End Users, Personnel and other persons to whom Customer provides any access to Products, Services or other Lightbeam Confidential Information to comply, with the provisions of this Agreement, and Customer shall be responsible for the failure of any such Affiliated Practice, End User, Personnel or other person to comply, but only to the extent Customer fails to use such best efforts.

(ii)	Required Resources. Except as provided in the Agreement, Customer will provide all equipment, connectivity, services, data, subscriptions, operating system software, configurations, and Personnel required for use of Products and Services. This includes workstations and/or tablet computers for End Users, Customer’s internet connectivity and security provisions, and Third-Party content licenses desired by Customer and Personnel for the reasonable support and troubleshooting of Customer-side systems. Customer shall be responsible for maintaining the security of its equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or its equipment with or without Customer’s knowledge or consent.

(iii)	Special Programs.  Lightbeam has no responsibility to identify, evaluate or assist Customer in Customer’s decision to participate in any Special Program. Customer will make its decision whether to participate in such opportunities in Customer’s discretion. Customer will notify Lightbeam in writing before agreeing to participate in any Special Program that will require change to Products or Services or that could affect Lightbeam’s performance under this Agreement. Lightbeam is not required to take or refrain from taking any action relating to or arising from such Special Program, except as otherwise set forth in an Order Form.

(iv)	Professional Diagnosis and Treatment. Products, Services and Lightbeam Software do not make clinical, medical or other professional decisions, and are not substitutes for Customer’s Personnel or Providers applying professional judgment and analysis. Customer is solely responsible for (i) verifying the accuracy of all data from the Customer’s source systems; (ii) obtaining necessary consents for use and disclosure of patient information; (iii) determining data necessary for decision-making by Customer and its Personnel; and (iv) making all diagnoses and treatments and determining compliance, and complying, with all Laws and licensing requirements for the operation of Customer’s business. Customer is responsible for ensuring that all Providers have active professional licenses and all other credentials required for the provision of services by them and are not suspended from providing services, and for performing reasonable credentialing activities to ensure that they have suitable backgrounds and are not prohibited from providing services by applicable Law or otherwise.

(v)	Providing Data. Customer is responsible for providing and updating Customer Data (including all applicable claims data and required data from Customer’s EHR if an EHR Interface is to be implemented) to Lightbeam in a commercially reasonable and consistent format. Upon request, Lightbeam will provide additional documentation on the data fields required and on possible formats and Lightbeam represents that it is able to accept EHR data in industry standard CCD-A format, Lightbeam’s proprietary flat file format and various other agreed-upon formats. Customer is ultimately responsible for providing complete and accurate data and Lightbeam will not be responsible for data errors or omissions where such errors or omissions are contained within data provided by Customer or on behalf of Customer. Notwithstanding anything to the contrary in this Agreement, if Customer does not complete Lightbeam’s Onboarding Questionnaire and provide Customer Data in accordance with this paragraph within sixty (60) days of this Agreement, the Go-Live Date will be deemed to have occurred for all purposes under this Agreement. Should Customer’s data format change requiring Lightbeam to re-program or re-configure data mappings or interfaces or should Customer request that Lightbeam compare or reconcile Customer Data to other data sources (i.e., a payer report), such work will be performed at a reduced hourly rate of $175.00 per hour.

(vi)	Implementation Plan, Status Updates. A collaborative relationship between Lightbeam and Customer is necessary to generate results through the successful implementation and operation of the Lightbeam Software. Throughout the Term of the Agreement, such collaboration will require the active participation of Customer’s executive team and other representatives from its clinical, financial, IT and operational departments (collectively, “Customer’s Executives”).  Lightbeam and Customer shall create an Implementation Plan within a mutually agreeable timeframe.  Lightbeam and Customer (including Customer’s Executives) shall communicate regularly with each other to discuss the status of the Implementation Plan and all issues of which either party is aware. On a quarterly basis, Customer’s Executives and Lightbeam shall use best efforts to participate in an Implementation Plan status update.

(vii)	Additional Responsibilities.  Customer is responsible for (i) selecting and training Customer’s personnel so they can operate computers and related systems and so they are familiar with the accounts and records that serve as input and output for the Software, (ii) appointing and maintaining at least two (2) of Customer’s employees to become Certified Professionals and notifying Lightbeam of any change in Certified Professionals, (iii) allowing Lightbeam to apply new Software versions, updates, fixes and patches as they are made generally available, provided such Software versions, updates, fixes or patches have passed testing by both Lightbeam’s quality assurance department and at least two Lightbeam customers using the Software in a production environment, and (iv) if the Order Form provides for an at-risk or shared savings arrangement with Lightbeam, timely adhering to and implementing any reasonable and lawful recommendations or guidance made by Lightbeam that are intended to reduce Customer’s or its Affiliates health care spending, improve quality measures and/or improve population health generally. 

(viii)	Software Maintenance Services. Provided Customer is current in payments required under any Order Form with Company and otherwise in compliance with this Agreement, then Company will provide Customer with Software Maintenance Services, which include:

a)	Version Updates. At no additional charge, all updates to Products, which shall include keeping Products in compliance with applicable federal and state regulated changes that are identified, in writing, by Customer or of which Company has become aware.
b)	Telephone and Internet Support. Access by two (2) named Customer Certified Professionals, during Business Hours, to Company’s customer support department to resolve issues arising from Customer internal use of the Products. 
c)	Exclusions. Company will not provide Software Maintenance Services if the Product database is modified by any method other than through a Company provided interface, Company-approved API, or via an alternate method that was pre-approved in writing by a Company Vice President or higher employee. In addition, Software Maintenance Services do not include the following: (a) support or support time due to a cause external to the Products adversely affecting its operability or serviceability, which shall include but not be limited to water, fire, wind, lightning, other natural calamities, transportation, misuse, abuse or neglect; (b) repair of Products modified in any way other than modifications made by Company; (c) support of any other third party vendors’ software, such as operating system software, network software, database managers, word processors, etc., except that Company will provide reasonable assistance and coordination in handling issues that arise with that Third Party Software purchased by Customer from Company, as set forth in the Order Form(s) – however, such assistance shall not include any updates to, or new version of, the third party software or correction of any program errors within the third party software; (d) support services that can be rendered telephonically either by Company or Customer personnel (at Company’s direction) but at Customer’s request are performed onsite by Company; (e) support services on anything but the most current generally-released version of the Products and the two generally-released versions immediately prior to same; or (f) training. All such excluded support services performed by Company shall be invoiced on a time and materials basis. 

(ix)	Customer shall control its (and its employees’ and agents’) usernames and passwords as private and confidential information, and shall not permit use of its usernames or passwords in connection with any attempt to evade access control limits. Customer is responsible for and shall ensure adequate security over its password and account information, including by securing any computing systems or access devices used by the Customer to access the Offering, and is solely responsible for any misuse or unauthorized use of its account.

(x)	Third Party Materials.  With respect to Third Party Materials provided under an Order Form, Lightbeam will use commercially reasonable efforts to pass through to Customer any warranties and indemnifications provided by the Third Party to Lightbeam. Lightbeam does not make, and hereby expressly disclaims, any warranties in connection with the Third Party Materials. All Third-Party Materials are provided “as-is” without any warranty or indemnification from Lightbeam whatsoever.

(xi)	Implied Warranties. To the maximum extent permitted by Law and except for the express warranties in this Agreement, Lightbeam and its licensors provide the Products and Services on an “as-is” and “as available” basis. Lightbeam and Third Party suppliers disclaim and make no other representation or warranty of any kind, express, implied or statutory, including representations, guarantees or warranties of merchantability, title, non-infringement, fitness for a particular purpose, accuracy, loss or corruption of data, timeliness, sequence, or implied by the provisions of any Laws that by their terms can be disclaimed (such as the Uniform Commercial Code or the Uniform Computer Information Transactions Act). If such provisions cannot be excluded and disclaimed, then the provisions of this Agreement will control to the maximum extent permitted. In addition, to the extent that the Order Form or any other documents delivered or made available by Lightbeam to Customer contain financial forecasts, financial modeling, or forward-looking statements (collectively, “Forecasts”), including Forecasts related to projected revenue and profitability levels, such Forecasts are only predictions. No representations are being made, and no assurances can be given, that the future results indicated, whether expressed or implied, will be achieved or occur. Forecasts are inherently based upon a variety of assumptions that may or may not be realized and are highly variable.” 

3.	The following is hereby added as new Section 6.3: “Compliance.  Each Party represents, warrants and hereby certifies that to the best of its knowledge:

i.	it, its affiliates and its Personnel are not under or subject to a “Corporate Integrity Agreement” or any other restriction or investigation by any payer, government agency or industry self-regulating organization;
ii.	neither it nor any of its affiliates, directors or Personnel are (a) listed on the General Services Administration’s Excluded Parties List System (“GSA List”) or (b) suspended or excluded from participation in any federal health care or insurance program or any form of state Medicaid or other health care or insurance program (collectively, “Government Payer Programs”); and
iii.	there are no pending or threatened governmental investigations against such Party or any of its affiliates, directors or Personnel that may lead to suspension or exclusion from Government Payer Programs or may be cause for listing on the GSA List.

Upon discovering or learning that the above certification is erroneous or has become erroneous, Customer will provide Lightbeam immediate written notice.

4.	The following is hereby added as new Section 6.4. “Limited Warranty.  Lightbeam represents and warrants to Customer that during the Term: (A) Lightbeam will maintain and update the applicable Software on Lightbeam’s servers, and (B) the SaaS Services, if applicable, and Software as delivered to Customer will substantially conform to the applicable Specifications documents within the Documentation; provided, Lightbeam makes no warranty to the extent Customer misuses the Software and Services or uses the Software and Services in combination with any incompatible data, software or equipment”

5.	The following is hereby added as new Section 6.5: “Sole Remedy.  To the extent permitted by Law, Customer’s sole and exclusive remedy, and Lightbeam’s sole liability arising out of or in connection with a breach of the warranty in Section 9.4 of this Agreement, is limited to Lightbeam correcting the nonconformity within 30 days of written notice of breach from Customer. Should Lightbeam fail to correct the nonconformity within such period, and provided that Customer has cooperated to the fullest extent possible with Lightbeam’s remediation effort, Customer may terminate this Agreement without further payment obligation to Lightbeam.” 


The following language is hereby added to § VII Defense of Third-Party Claims:

1.	Section 7.1 “By Customer” is replaced in its entirety with “To the maximum extent allowed by law, Customer shall defend, indemnify and hold Lightbeam and Lightbeam’s officers, directors, shareholders, agents, and employees againstand all liabilities, obligations, claims, demands, costs, and expenses of every kind an nature, including attorneys’ fees and litigation expense from, any third-party claim or action arising out of (a) the failure of Customer to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals associated with Customer Data being provided to Lightbeam, (b) any inaccurate representations regarding the existence of an export license or any allegation made against Lightbeam due to Customer’s violation or alleged violation of applicable export laws, regulations, and orders, or (c) the acts or omissions of Customer or its Affiliated Practices, including without limitation, any personal injury (including death) or damage to property.”

2.	Section 7.2 “By Publisher” is replaced in its entirety with “Duty to Indemnify.  ‘Indemnified Technology’ means Lightbeam Software and Services paid for by Customer, but excludes any Third Party Software, Hardware, sample code, SDK, open source, trial or versions of the Lightbeam Software and/or Services. Lightbeam will defend any Third Party claim against Customer during the Term to the extent the Claim alleges that the Indemnified Technology infringes the Third Party’s trade secrets or any patent, copyright, or trademark rights of such Third Party (each an “Infringement Claim”).  Lightbeam will pay Customer the Losses (including reasonable legal fees) that are attributable to an Infringement Claim.

a.	Lightbeam’s Options.  In the defense or settlement of any Infringement Claim, Lightbeam may, at its sole option and expense:

i.	procure for Customer a license to continue using the Indemnified Technology under the terms of this Agreement;
ii.	replace or modify the allegedly infringing Indemnified Technology to avoid the infringement; or
iii.	terminate this Agreement with respect to the infringing part of the Indemnified Technology if neither of the foregoing is commercially reasonable and refund.

b.	Exclusions.  Lightbeam shall have no liability for any Infringement Claim that arises from:

i.	use of the Indemnified Technology in violation of this Agreement;
ii.	modification of the Indemnified Technology by anyone other than Lightbeam or a party authorized in writing by Lightbeam to modify specific code within the Indemnified Technology;
iii.	failure by Customer to install the latest updated version of the Indemnified Technology as requested by Lightbeam to avoid infringement;
iv.	installation or use of Indemnified Technology contrary to the specifications and directions contained in the Documentation or other reasonable instructions of Lightbeam;
12.3.5 Third Party products, services, hardware, software, or other materials, or combination of these with Indemnified Technology if the Indemnified Technology would not be infringing without this combination; or
12.3.6 any Indemnified Technology made in whole or part in accordance with Customer’s specifications.

c.	Conditions to Indemnification. Lightbeam shall have no liability for any Infringement Claim if Customer fails to:

i.	notify Lightbeam in writing of the Infringement Claim promptly upon the earlier of learning of or receiving a notice of such Infringement Claim, to the extent that Lightbeam is prejudiced by this failure;
ii.	provide Lightbeam with reasonable assistance requested by Lightbeam for the defense or settlement (as applicable) of the Infringement Claim;
iii.	provide Lightbeam with the exclusive right to control and the authority to settle the Infringement Claim (Customer may participate in the matter at its own expense); or
iv.	refrain from making admissions about the Infringement Claim without Lightbeam’s prior written consent.

3.	Section 7.4 Sole and Exclusive Remedy. The remedies in this Section 7 are Customer’s sole and exclusive remedies and Lightbeam’s sole liability regarding the subject matter giving rise to any Claim that the product and Services infringe or misappropriate any Third Party’s intellectual property rights.


Section  § VIII Limitation of Liability is replaced in its entirety with the following:

a)	Except for Excluded Claims, in no event is either Party  liable for any of the following arising out of or concerning this Agreement, however caused: consequential, special, moral, incidental, indirect, reliance, punitive or exemplary damages; loss of goodwill, profits, use, opportunities, revenue or savings; business interruption; or loss or corruption of data. “Excluded Claims” means Claims arising from a Party’s breach of Sections 1.6, 3, 13 or 6.3.

b)	In no event are Lightbeam’s licensors liable to Customer under this Agreement on any basis whatsoever. 

c)	Except for Excluded Claims, each Party’s maximum aggregate liability for each and all Claims (individually and in the aggregate) under or relating to this Agreement or its subject matter is limited to an amount equal to the aggregate of the fees paid or owed by Customer under this Agreement.

d)	The limitations in this section apply regardless of the form or source of Claim or Loss, whether or not they may cause this Agreement or any remedy available to a Party to fail of its essential purpose, whether the Claim or Loss was foreseeable, and whether the applicable Party has been advised of the possibility of the Claim or Loss.

e)	Waiver of Jury Trial. Both Publisher and Customer hereby waive their right to trial by jury.


§ X Term and Termination is hereby deleted in its entirety and replaced with the following:

10.1	Term. This Agreement commences on the Effective Date and ends on the fifth anniversary of the Go Live date (the “Initial Term”) unless terminated earlier or extended as per Sections 7.2, 7.3 or 7.4 below.


10.2	Automatic Renewal.  After the Initial Term, this Agreement shall be automatically renewed for successive two-year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party notifies the other Party in writing of its intent to terminate at least ninety (90) days prior to the end of the then-current Term.  

10.3	Termination with Cause.

10.3.1	Material Breach by Either Party. If either Party commits a material breach of this Agreement, the non- breaching Party may give written notice describing the nature and basis of the breach to the breaching Party.  If the breach is not cured within 30 days of the notice date, the non-breaching Party may immediately terminate this Agreement.

10.3.2	Bankruptcy. Either Party may terminate this Agreement (i) immediately upon notice if the other Party ceases to conduct its business, makes a general assignment for the benefit of its creditors, admits publicly its inability to meet its obligations as they come due, voluntarily files for bankruptcy or insolvency, or is the subject of a filing by a Third Party for bankruptcy, insolvency, receivership or similar protection that is not dismissed within forty-five days.

10.4	Effect of Termination; Transition.  Upon termination or expiration of this Agreement for any reason, all of the following shall apply: (a) Customer’s rights and licenses under this Agreement, including its right (if any) to access and use SaaS Services and all related functionality, shall immediately terminate, (b) Customer must, at its expense, remove and delete all copies of Software and Documentation, and (c) all amounts payable or accrued to Lightbeam under this Agreement shall become immediately due and payable. Upon any termination or expiration of this Agreement, Lightbeam shall make available to Customer all copies of Customer Data and Confidential Information of Customer then-currently in Lightbeam’s possession, custody or control for a period of 30 days and Customer shall have sole responsibility for collection of Customer Data and Confidential Information of Customer then-currently in Lightbeam’s possession, and any related expense. Lightbeam shall have the right to destroy all data 30 days after such termination or expiration without any further obligation to Customer. Customer may procure additional transition services from Lightbeam at Lightbeam’s then-current hourly rates and upon standard terms and conditions.

10.5	Survival.  The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters:  Customer Responsibilities, Confidentiality, Privacy, Term and Termination, Proprietary Rights, Warranty Disclaimers, Limitation of Liability, Indemnification, and General Provisions and any provisions relating to accrued rights to payment.

The following language is hereby added to § XI Miscellaneous:

1.	Section 11.2 “Independent contractors” is hereby deleted in its entirety and replaced with the following: “Relationship of Parties.  Lightbeam is an independent contractor, and nothing in this Agreement is intended to constitute an employment, partnership, joint venture, fiduciary, trust or agency relationship between the Parties, or authorize Customer or Lightbeam to enter into any commitment or agreement with any Third Party that is binding on the other Party.

2.	Section 11.5 Assignment is hereby deleted and replaced in its entirety with the following: “Assignment; Binding Effect; Subcontractors. This Agreement is personal to Customer, and Customer may not assign this Agreement or any of Customer’s rights or duties hereunder without the advance written consent of Lightbeam. Notwithstanding the foregoing, either Party may assign this Agreement or its rights and/or duties to its affiliates or to its successor in the event of a sale of all or substantially all of its assets, voting securities, or the assets or business related to the Products or Services provided under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ respective legal representatives, and permitted transferees, successors, and assigns. Lightbeam may subcontract the performance of its obligations hereunder to Third Parties as it determines appropriate.

3.	Section 11.7 “Waiver” is hereby deleted and replaced in its entirety with the following: “Waiver; Modification. Neither Party’s waiver of the breach of any provision constitutes a waiver of that provision in any other instance. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties." 

4.	Section 11.8 “No third-party beneficiaries” is deleted in its entirety and replaced with the following: “Third Party Beneficiaries.  Customer acknowledges and agrees that Lightbeam’s licensors are third party beneficiaries of this Agreement, with the right to enforce the obligations in this Agreement directly against Customer. Except as provided in the foregoing sentence, the Parties agree and acknowledge that this Agreement is not made for the benefit of any other Third Party and nothing in this Agreement, whether expressed or implied, is intended to confer upon any other Third Party any rights or remedies under or by reason of this Agreement, nor is anything in this Agreement intended to relieve or discharge the liability of either Party hereto, nor shall any provision hereof give any entity any right of subrogation against or action over or against either Party.”

5.	Section 11.9 “Notices” is hereby deleted in its entirety and replaced with the following: “Notices.  Any notice given under this Agreement must be in writing and, other than service of process, may be delivered by email (a) if to Lightbeam, to legal@lightbeamhealth.com with a copy to an additional email address to be provided by Lightbeam and updated from time to time, and (b) if to Customer, to the email address set forth on the Order Form. Notices delivered personally or via overnight mail will be effective upon delivery, and notices delivered by U.S. mail will be deemed effective five (5) business days after being deposited in an official U.S. Postal Service mailbox. A notice is taken to have been received by email 4 business hours (based on recipient’s time zone) after the time sent (as recorded on the device from which the sender sent the email), unless the sender receives an automated message that the email has not been delivered.”

6.	Section 11.10 “Applicable law” is hereby deleted in its entirety and replaced with the following: “Disputes, Governing Law, Venue.  Any dispute arising under this Agreement will be escalated for resolution to each Party’s most senior executive with direct responsibility for the relationship prior to initiation of any arbitration or litigation hereunder. This Agreement is governed by and construed under the Laws of the State of Delaware without regard to any conflict of law rules or principles. The Parties irrevocably submit to the exclusive jurisdiction of the federal courts of competent jurisdiction in the State of Texas, provided however, Lightbeam may pursue claims against Customer in any other jurisdiction worldwide to enforce its intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply.  In the event that Lightbeam is the prevailing party in any action seeking to enforce its rights and remedies under this Agreement, Customer shall pay all costs of collection, including reasonable attorney’s fees, incurred by Lightbeam in collecting any amounts due and payable hereunder.”

7.	Section 11.12 “Government procurement rules” is hereby deleted in its entirety and replaced with the following: “U.S. Government Licensing.  For US Government end users: Customer acknowledges that Products and Services are “Commercial Item(s),” as that term is defined at 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Customer agrees, consistent with 48 C.F.R. section 12.212 or 48 C.F.R. sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (A) only as Commercial Items; and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright Laws of the United States.”

8.	The following new Section 11.15 is hereby added: “Equitable Relief. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, provisions on intellectual property (including ownership), license, privacy, data protection and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach Without the posting of any bond or other security and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.”

9.	The following new Section 11.16 is hereby added: “Viruses and Other Malware. Each Party will maintain updated commercial Virus scanning software and use commercially reasonable efforts to ensure that its electronic communications do not contain any viruses.”

10.	The following new Section 11.17 is hereby added: “Force Majeure. A Party’s failure to perform its obligations under this Agreement, other than the payment of money, is excused to the extent that the failure is caused by an event outside its reasonable control., including an act of God, act or threat of terrorism, shortage of materials, strike or labor action, war or threat of military or significant police action, natural disaster, failure of Third Party suppliers, denial of service attacks and other malicious conduct, utility failures, power outages, governmental acts, order, or restrictions, or other cause beyond its reasonable control.”

11.	The following new Section 11.18 is hereby added: “Customer Cooperation. Lightbeam may publicly identify Customer as Lightbeam’s customer, including use of Customer’s logo in sales presentations, marketing materials, and Lightbeam’s website. Customer will reasonably assist Lightbeam in marketing the Products and Services to others, including (i) reasonable visits to Customer sites for potential Lightbeam customers and Third Party relationships and (ii) testimonials and reference calls as to the quality, usefulness, and relevance of the Products and Services used by Customer. The scheduling of such visits, testimonials, or reference calls would be subject to Customer’s prior approval. 

12.	The following new Section 11.19 is hereby added: “Covenant not to Solicit or Hire. Each Party recognizes the expense and time associated with recruiting, hiring, training and maintaining employees. Each Party agrees that, except as consented to by the other Party in advance in writing, it will not during the Term or for a period of two (2) years after any termination or expiration of this Agreement, directly or indirectly, solicit to reduce their relationship with the other Party, or hire for it or on behalf of any Third Party any of the other Party’s employees who are then engaged by the other Party as an employee or who within the prior twelve (12) months was an employee of the other Party. This section does not prohibit general advertising and solicitations by a Party but does not permit the hiring of the other Party’s employees who respond to such advertising or solicitations. For any violation of this section by a Party or its Personnel, such Party will pay to the other Party liquidated damages in the amount equal to the most-recent annual salary paid by the other Party to the solicited employee, plus any costs to recruit a replacement for such employee. Each Party agrees that the damages to be incurred by the other Party for a violation of this section are difficult to estimate, and that the liquidated damages set forth in this section are reasonable estimates of those damages, and further agrees that such damages are enforceable and will be paid upon any such violation.”

13.	The following new Section 11.20 is hereby added: “Export Rules.  Customer acknowledges that the Products and Services may be subject to the U.S. Export Administration Regulations and other export Laws and regulations, and Customer will comply with them.”

14.	The following new Section 11.21 is hereby added: “License Compliance.  During the Term and for one (1) year thereafter, Customer and its Affiliated Practices shall keep complete and accurate books and records relating to use of Products and Services and any fees payable under this Agreement. Lightbeam may, at its expense, but no more than twice per year, appoint its own Personnel or an independent third party (or both) to inspect such records to verify that use, installation, and deployment of the Products and Services by Customer and its Affiliated Practices comply with the terms of this Agreement. Such verification may include an onsite audit conducted at Customer’s or its Affiliated Practices’ relevant places of business upon 15 days prior notice, during regular Business Hours, and will not unreasonably interfere with Customer’s business activities.”

15.	The following new Section 11.22 is hereby added: “Insurance. Each party shall secure and maintain during the term of this Agreement the following liability insurance:

(i)	Comprehensive General Liability in the minimum amount of $1,000,000 per occurrence and $2,000,000 in annual aggregate.
(ii)	Worker’s Compensation in accordance with statutory limits.
(iii)	Professional/Errors and Omissions Liability in the minimum amount of $3,000,000 per occurrence and $3,000,000 in the annual aggregate.
(iv)	Cyber/Network/Privacy Liability in the minimum amount of $3,000,000 per occurrence and $3,000,000 in the annual aggregate.”

The following language is hereby added to § XII Definitions:

2.	The definition of “Affiliate” is replaced in its entirety with “’Affiliate’ means a medical practice or physician group (including but not limited to those having separate tax identification numbers) located within the United States that is controlled by, or affiliated by, written agreement with Customer.”

3.	“Business Hours” means 9:00AM to 5:30PM U.S. Central Time, excluding holidays and weekends.

4.	“Certified Professional” means Customer’s employee(s) who: (a) are actively involved in the day-to-day operation and support of the Offering within Customer’s organization, (b) who have passed Lightbeam’s certification program, which may consist of an online “open book” (e.g. Customer’s employees may use both the application as well as the Documentation) exam that consists, among other things, of multiple choice, true/false, and fill-in-the-blank questions, and (c) attend Lightbeam’s User Group Meeting annually, at nominal additional cost, to participate in training and be kept up to date on Lightbeam and the Lightbeam Software.

5.	“Claim” means a claim, action, proceeding, or demand made against a person or entity, however arising and whether present or future, fixed or unascertained, actual, threatened, or contingent.


6.	“Customer Data” means all data, information, and other content that is input, uploaded to, placed into, or collected or stored by or on behalf of Customer.

7.	The definition of “Documentation” is replaced in its entirety with “’Documentation’ means generally available documentation related to Products and Services, including user guides, technical manuals, release notes, installation instructions, information pertaining to maintenance services and online help files regarding use of Software, and all updates thereto.

8.	“Effective Date” has the meaning set forth in the Order. If no Effective Date is set forth on the Order, the Effective date shall be the date the Order is executed by both Customer and Lightbeam.

9.	The definition of “End User” is replaced in its entirety with “’End User’ means each individual Provider, or other Personnel of Customer, or an Affiliate who: (a) is based in the United States and (b) is authorized by Customer or an Affiliate to use any portion of the Products or Services. Each End User will be assigned a unique ID and password.

10.	“Go-Live” means the earliest date on which all of the following conditions are satisfied: (i) the SaaS Services are made available to the Customer; (ii) the first claims Interface has been completed with claims data loaded and tested in a manner that meets the definition of Successful Validation (unless no claims Interface is included in the Order Form); (iii) if purchased, at least one of the EHR or claims interfaces is ready to accept Customer Data; and (iv) Lightbeam has provided logins and passwords to Customer to allow Customer access into the Lightbeam Software.

11.	“Hardware” means Lightbeam hardware and Third Party hardware.

12.	“Implementation Plan” means a document in written or electronic form setting out proposed activities, dates, participants, roles, and milestones between Customer and Lightbeam for implementation of Lightbeam Software or Services under this Agreement.

13.	“Interface” means the part of any Lightbeam Software designed to exchange data between or among Lightbeam Software components and other software or between Lightbeam Software and Hardware.

14.	“Law” means those applicable federal and state statutes, regulations, codes, ordinances, agency directives, binding court orders and other binding government requirements.

15.	“Lightbeam Software” means software in object code form and/or content licensed under an Order and identified as Lightbeam Software, Population Health Management Software, Analytics, Dashboards, SearchLight, Enterprise Data Warehouse, Provider Engagement, Care Management, Group Practice Reporting Option (“GPRO”), Clinical Artificial Intelligence (“AI”), Health Equity AI, Deviceless Remote Patient Monitoring, Patient Engagement, ADT Insights, Referral Management, Creator Studio, any Interfaces, and any and all updates, modifications, improvements, extensions, and derivative works made thereto by or for Lightbeam, Customer, or any Third Party.

16.	“Lightbeam Technology” means the Products, Services, and Documentation, including all Interfaces, templates, forms, software tools, algorithms, software (in source and object form), user interface designs, architecture, toolkits, plug-ins, objects, documentation, network designs, ideas, processes, know-how, methodologies, formulas, systems, data, designs inventions, techniques, trade secrets, and any related intellectual property rights throughout the world included therein, as well as any derivatives, modifications, improvements, enhancements, or extensions of the above, whenever developed.

17.	“Loss” means any damage, loss, cost, expense, or liability incurred by a person or entity.

18.	“Member” means, for the purposes of calculating the number of Members, used to determine a total Per Member Per Month (“PMPM”), a unique person with a unique Member ID for any Product. A Member may also be a beneficiary, a patient, or an enrollee of the Customer or a Provider.

19.	“Onboarding Questionnaire” means a summary of complete Customer Data requirements and list of questions provided by Lightbeam to Customer that captures information necessary for Lightbeam to load Customer data correctly into the applicable database.

20.	The definition of “Order” is replaced in its entirety with “’Order” means each sales ordering document form that is executed between Customer and Lightbeam for Customer’s procurement of Products and Services to transact the Offering on via the Marketplace.

21.	“Party” means Lightbeam or Customer, as applicable.

22.	“Personnel” or “representatives” means, with respect to each Party, such Party’s officers, employees, consultants, and contractors.

23.	“Products” means one or more of the following procured or licensed by Customer as set out in an Order: Lightbeam Software, Third Party Software, Lightbeam Hardware, and Third Party Hardware.

24.	“Provider” means any licensed provider of healthcare services, including physicians, osteopathic physicians, dentists, optometrists, physical therapists, nurse practitioners, physician assistance, and all other licensed providers.

25.	“SaaS Services” or “Offerings” means services that (a) make Software functionality accessible to Customer on a subscription basis via the Internet and on a browser as more specifically set forth in the applicable Documentation and (b) are identified as “SaaS Services” or “Offerings” on an Order.

26.	“Software” means Lightbeam Software and/or Third-Party Software (but excluding Customer Software), as applicable, including any plug-in software that enables End Users and/or Members to access and use the Services.

27.	“Special Program” means any governmental or non-governmental program, project, grant, incentive-based opportunity or other program relating to Customer’s business.

28.	“Successful Validation” means Lightbeam has validated that the data received is represented within the database and Software to match within ninety-five percent (95%) with respect to patient counts, record counts, dollar amounts (if claims data) and similar metrics, unless other criteria or thresholds are otherwise agreed-upon in writing by Lightbeam and Customer.

29.	“Term” has the meaning set forth in Section 7.2 hereof.

30.	“Third Party” means any person or entity other than Lightbeam or Customer.

31.	“Third Party Hardware” means equipment and other hardware distributed under a Third Party’s brand that is purchased or leased by Customer from Lightbeam under an Order Form.

32.	“Third Party Materials” means Third Party Software and Third-Party Hardware.

33.	“Third Party Software” means Third Party software and/or content identified as Third-Party Software in an Order Form or otherwise provided to Customer in connection with Customer’s permitted use of Lightbeam Software, including related data, graphics, subscriptions, libraries, diagnosis and procedure code sets, and patient education and drug interaction database.

34.	“Virus” means viruses, worms, trojans and other malware or malicious code intended to cause or that cause computers or systems to fail to act properly or to function in an unintended manner or permit unintended access to such computers or systems by any Third Party. License keys and other functionality intentionally inserted in Software by the licensor are not Viruses.

The following language is hereby added to new § XIII Proprietary Rights:

13.1	Ownership.  Lightbeam and its licensors own the Lightbeam Technology.  No Software is sold to Customer under this Agreement. Customer has no right, without advance written permission from Lightbeam, to use Lightbeam’s or any Third Party’s name, trademarks or logo, or any goodwill now or hereafter associated therewith.

13.2	No Modifications.  Customer must not modify, create derivative works of, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms in, any Lightbeam Technology, use the Technology for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any proprietary notices or labels, except to the extent permitted under the Law.

13.3	Feedback.  To the extent that Customer creates and submits to Lightbeam any changes, improvements, extensions, or derivative works of any Lightbeam Technology (collectively “Feedback”), Customer will provide copies of such Feedback to Lightbeam upon request.  If submitted, Customer hereby agrees to assign upon creation of any Feedback, and hereby does assign, all right, title and interest to such Feedback, including all intellectual property embodied within, to Lightbeam.  To the extent such Feedback cannot be assigned, Customer hereby grants to Lightbeam a nonexclusive, worldwide, royalty-free, perpetual and irrevocable license to use such Feedback in any way Lightbeam determines without notice, payment or attribution to Customer or its Personnel.  Customer will not assert, and Customer will not authorize, assist, or encourage any Third Party to assert, against Lightbeam or its customers, Lightbeam’s business partners, or licensors, any intellectual property infringement claim based upon any Products or Services provided hereunder, or any related Feedback.

13.4	Customer Data.  Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.