THIS eLoom End User License Agreement (“EULA”), together with the eLoom Software Subscription Agreement (of which this EULA is a part) (“Subscription Agreement”) set forth the terms and conditions under which Partners in Computing Services International LLC (“we” or the “Licensor”) grants to the customer named in the Subscription Agreement (“you” or the “Licensee”) a limited non-exclusive right and license to access and use Licensor’s proprietary eLoom computer programs, applications, templates, forms, and tools (the “Software”).  For purposes of this EULA, “Software” shall also include any versions, revisions, or updates to the Software Licensor generally makes available to subscribers without additional subscription fees or charges (“Updates”), and also any interfaces, modifications or enhancements Licensor may make to the Software to meet Licensee’s specific requirements (“Configurations”).  The Software, together with user guides, sample data, marketing materials and other material provided in connection with or accessible through the Software or other services provided by Licensor, shall be referred to, collectively, as “the Licensed Materials,” and the terms and conditions hereof shall apply to the Software, and to such Licensed Materials.  Capitalized terms used but not defined herein shall have the meanings set forth in the Subscription Agreement.

1.  Your access to, or use of, any part of the Software or Licensed Materials or your signature on the Subscription Agreement shall constitute your representation that you have read all the terms and conditions of this EULA and the Subscription Agreement, and your acceptance of them as an integral part of the agreement and your purchase or order of an eLoom subscription.  If you do not agree to be bound by these terms and conditions, do not access or use any of the Software or Licensed Materials, and do not sign the Subscription Agreement.

2.  Subject to the terms, restrictions, and conditions set forth in this EULA and in the Subscription Agreement, during the annual term of a subscription paid for by Licensee, Licensor hereby grants to Licensee a limited, non-transferrable, non-exclusive license to access and use the Software and Licensed Materials exclusively for the Licensee’s internal purposes of structuring, configuring, organizing, tabulating, analyzing, reporting and displaying data (“Customer Data”) generated, transmitted, processed and/or stored through certain proprietary Third Party Software supported by eLoom, and licensed separately by Licensee from such third parties, solely in connection with Licensee’s provision of health care-related services. 

3.  The Software and Licensed Materials are our proprietary products, may incorporate components supplied to us under license by OEMs or other third-party suppliers, and may be protected by United States patent, trade secret, copyright law and international treaty provisions. All such rights in and to Software and Licensed Materials and any part thereof are the property of us or our suppliers. By virtue of this License, you acquire only the right to use the Software and Licensed Materials in accordance with this EULA and the Subscription Agreement, but otherwise acquire no license, title or ownership rights, express or implied, in or to the Software or Licensed Materials, or any right to use or practice any of our or our suppliers’ patents, copyrights, trademarks, or trade secrets, all of which rights are reserved expressly by us or our suppliers. You may not make any copies of the written materials or documentation that accompanied any component of the Software or Licensed Materials, or use them, or any other information concerning the eLoom subscription services that we have designated as confidential, for any purpose other than bona fide use of the eLoom subscription service, Software or Licensed Materials, for the specific internal purposes contemplated herein, nor allow anyone else to do so. Licensor and its suppliers and licensors retain and reserve all ownership of all intellectual property rights in and to all Software, Licensed Materials, related documentation, technology, knowhow and methods and processes embodied in or made available to you in connection with the eLoom subscription service, including, without limitation, all patent rights, copyrights, trade secret rights, trademarks and service marks.  Licensor’s OEMs and suppliers whose software or products are incorporated into the Software licensed to you hereunder shall be regarded as intended third party beneficiaries with the right to enforce the restrictions and provisions of this EULA.  All rights not expressly granted to you herein are reserved by Licensor and its suppliers. You shall take all reasonable measures to protect Licensor’s and its suppliers’ intellectual property rights in the Software and Licensed Materials, including providing assistance and measures as are reasonably requested by Licensor from time to time.

4.  You, and your employees, officers, agents, representatives, consultants, contractors and others acting subject to your direction or control, shall not, without our express written consent, which may be withheld or conditioned at our sole discretion: 
(i) modify, adapt, alter, translate, copy, perform or display (publicly or otherwise) or create compilations, derivative, new or other works based, in whole or in part, on the Software, Licensed materials, or on eLoom’s subscription service; 
(ii) merge, combine, integrate or bundle the Software or the Licensed Materials, in whole or in part, with other software, hardware, data, devices, systems, technologies, products, services, functions or capabilities other than the Third Party EHR/EMR Software, unless we perform any or all of such foregoing work under a mutually-agreed service order, or we consent in writing after prior written notice; 
(iii) transfer, distribute, or make available access to the Software or Licensed Materials to any person other than the specific end user subscriber identified to Licensor as the customer in the Subscription Agreement, or sell, resell, sublicense, lease, rent, or loan the Software or Licensed Materials, in whole or in part;
 (iv) provide access to, use of, or permit operation of any of the Software or Licensed Materials by any person other than the original end user customer designated in Subscription Agreement, nor in or through any application service provider, service bureau, rental or time-sharing arrangement; 
(v) disassemble, decompile, or otherwise reverse engineer or attempt to reconstruct, derive, or discover any source code, underlying ideas, algorithms, formulae, routines, file formats, data structures, programming, routines, interoperability interfaces, drawings, or plans from the Software or Licensed Materials, in whole or in part;
(vi) remove, modify or obscure any identification or proprietary or restrictive rights markings or notices from the Software, Licensed Materials, or any component thereof;
(vi) interfere with the operation of, or disrupt the integrity or performance of, the Software or the Licensed Materials;
(vii) attempt to gain unauthorized access to the Software, Licensed Materials or the systems or networks Licensor uses to operate and delivery the Software and Licensed Materials and their functionality;
(viii) use or refer to the Software or Licensed Materials to develop, market or provide a product or service that competes with the Software or Licensor’s subscription service, or to copy any feature, function or graphic of the Software or Licensed Materials for such purposes; or
(ix)  Use the Software or Licensor’s networks to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights).

4.  Licensee shall be solely responsible for obtaining such licenses and rights from licensors of Third Party Software as may be necessary to authorize Licensee to host, export and use in conjunction with the Software and Licensed Materials the Subscriber Data. Licensee hereby represents and warrants to Company that, at all times during the Subscription term, it will maintain in force such valid, current licenses and rights. Licensee shall be solely responsible for receiving, hosting, storing, processing and transmitting Subscriber Data in a manner meeting the terms and conditions of all third party contracts and licenses to which Licensee is bound, as well as all applicable security and privacy standards, and all applicable laws and regulations, including, without limitation, HIPAA Regulations, the Federal Confidentiality of Substance Use Disorder Patient Records law and regulations, 42 U.S.C. § 290dd-2 and 42 C.F.R. Part 2 (“42 C.F.R. Part 2”), and applicable Privacy Regulations.  Licensee hereby represents and warrants to Licensor that, at all times during the Subscription term, it will comply with the terms and conditions of all such contracts and licenses, standards, and laws and regulations. 

5.  Licensee shall use commercially reasonable security controls, measures and efforts consistent with health care services industry security and privacy standards and applicable laws and regulations (including, without limitation, HIPAA regulations, 42 C.F.R. Part 2, and applicable Privacy Regulations) to prevent unauthorized access to the Software, Licensed Materials, Third Party EHR/EMR Software, and Subscriber Data. Licensee may designate up to the number of users under its eLoom account which corresponds to the access required by assigning unique passwords and user names. Licensee will be responsible for the confidentiality and use of all of Licensee’s passwords and user names, and agrees that sharing passwords and/or user names with unauthorized users is prohibited.

6.  LIMITED EXCLUSIVE WARRANTY; DISCLAIMER OF ALL OTHER WARRANTIES  
Subject to the following disclaimers, Licensor warrants that, during the term of Licensee’s paid annual subscription (“Subscription Term”), the Software will operate in substantial conformity to the specifications set forth in Documentation (including any functionality descriptions in Attachment A of the Subscription Agreement) for the Subscription Term then in effect, provided that the Software is used with the third party software, network and terminal equipment for which it was designed. The preceding limited exclusive warranty will not apply: (a) if the Software or Licensed Material is not used in accordance with the Documentation, the Subscription Agreement, or this EULA; (b) if the Software or Licensed Materials or any part of it has been altered or modified by anyone other than Licensor; or (c) to the extent a defect in the Software or Licensed Materials is caused by a product, service, or hardware not provided by Licensor

Provided, however, that LICENSOR does not make any OTHER guarantees, warrantIES or representations, express or implied WITH RESPECT TO THE SOFTWARE, LICENSED MATERIALS OR DOCUMENTATION, OR ITS OR THEIR FUNCTIONALITY, including, without limitation, any warranty as to quality, accuracy, correctness, completeness, comprehensiveness, suitability, compatibility, merchantability, fitness for any particular purpose, title, non-infringement or otherwise (irrespective of any course of dealing, custom or usage of trade), all of which are hereby expressly disclaimed to the fullest extent permitted by applicable law.  FURTHER LICENSOR does not warrant that access to Software will be uninterrupted, that the Software will meet LICENSEE's requirements or that it will operate in the specific combinations OR INTEROPERATE WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR TECHNOLOGIES USED by the LICENSEE, OR THAT THE OPERATION OF THE SOFTWARE OR RESULTS OBTAINED BY LICENSEE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.  ANY AND ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH IN THIS SECTION, WHETHER EXPRESS OR IMPLIED, ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.  ThESE disclaimerS constitute an essential BARGAINED-FOR part of this AgreemenT, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.

Provided that Licensee gives Licensor reasonably prompt written notice of a material breach of the foregoing Limited Software Warranty, Company agrees to employ commercially reasonable efforts to correct substantial Software errors or deficiencies at no additional charge to Subscriber within ninety (90) days of such notice.  In the event Company fails to correct such errors or deficiencies after receiving written notice and being afforded an opportunity to cure, then Subscriber’s sole remedy shall be to cancel its Subscription and terminate this Agreement “for cause” pursuant to Section 4(b) of the Subscription Agreement, whereupon Company shall refund a pro-rated portion of the prepaid annual Subscription Fee corresponding to the unexpired portion of the Subscription Term then in effect, which termination and refund shall be Subscriber’s sole and exclusive remedy and Company’s sole and exclusive liability in that event.

Except as expressly set forth in this Section 6, the Software, Licensed Materials, Documentation, and Support Services are furnished by Licensor and accepted by Licensee on an “as is, where available,” basis.  No Licensor agent or employee is authorized to make any statement or representation that adds to, amends, varies, or alters the limited warranties, disclaimers, and/or exclusive remedies, or waives the limitations provided for in this Agreement, unless the same is set forth in a writing signed by an authorized officer of Licensor.

7.  LIMITATIONS OF LIABILITY

Under no circumstances will LICENSOR be liable for any indirect, special, incidental, or consequential damages or loss, including but not limited to loss of profits, loss of use, or loss of, damage to, or corruption of Subscriber Data OR OTHER DATA, whether caused by breach of contract, negligence, or otherwise, even if LICENSOR had notice of or was advised of the possibility of such damages. IN ANY EVENT, Under no circumstances shall the liability or responsibility of LICENSOR, or that of ANY its shareholders, members, managers, directors, officers, affiliated companies, employees, agents, contractors, or subcontractors, OR SUPPLIERS for any and all liabilities, claims or damages arising out of or relating to this Agreement, howsoever caused and regardless of the legal theory asserted, including breach of contract or warranty, tort, strict liability, statutory liability or otherwise, exceed, in the aggregate, the amount of Subscription Fees paid to LICENSOR during the one-year annual Subscription Term during which occurred the incident or circumstances from which such liabilities, claims or damages arose occurred, and LICENSEE hereby expressly waives any such rights it may HAS have to claim receive TYPES OF damages LIMITED BY, or in excess of the limits provided in, this Section.  

8.  Licensee shall defend, indemnify, and hold the Company and its shareholders, members, managers, directors, officers, employees, agents, and contractors, affiliated companies, and OEMs and suppliers, harmless from and against any liability, fine, loss, damage, cost or expense (including, without limitation, reasonable attorneys' fees) resulting from or incurred in connection with investigating and defending a third-party demand, claim, action or proceeding  arising out of or relating to:  (i) the provision of Subscriber Data to the Licensee; (ii) the provision of medical or health care services by Licensee; (iii)  the negligent or willful acts or omissions of Licensee, or any of its employees, agents, or contractors; (iv) Licensee’s breach or violation of any of its covenants, obligations, warranties or representations in this EULA or the Subscription Agreement (any or all, a “Claim”) provided, that:  (A)  Licensor or a person entitled to indemnity hereunder shall give Licensee timely notice in writing of any such Claim promptly after becoming aware of it; (B) Licensor and indemnified persons shall cooperate with Subscriber in all reasonable respects in connection with the investigation and defense of any such claim; (C) Licensee shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise (provided, however, any settlement requiring any payment by Licensor or other indemnified person that would otherwise have a material adverse impact upon the business of Licensor and/or such person will be subject to the prior written approval of Licensor and/or person, as the case may be).

8.  The foregoing license, and the Licensee’s rights to access and use the Software and Licensed Materials shall expire, be revoked and terminate automatically, without the necessity of further notice to Licensee or action by Licensor, at the expiration of the Licensee’s annual Subscription Term, unless renewed effectively in accordance with the Subscription Agreement, or upon earlier termination of the Subscription Agreement by either party for any reason.  Upon such expiration or termination, Licensor shall disable Licensee’s access to Software and suspend all support, and Licensee shall cease all uses of Software, Licensed Materials, Documentation, and Licensor Confidential Information, and shall permanently delete from its and its employees’ and agents’ servers, networks, computers, and devices all elements and copies of Software, Licensed Materials, and Documentation, and Licensor Confidential Information kept or stored on any of the same.  Licensee will complete such deletion, and deliver a writing signed by a duly-authorized Licensee officer certifying such deletion, not less than sixty (60) days after the effective date of expiration or termination. 

9.  The provisions of Section 9 (Governing Law, Dispute Resolution and Miscellaneous Other Terms), inclusive, of the Subscription Agreement are incorporated herein by reference, and shall govern this EULA.  

10.  The Parties acknowledge that the grant of license rights to Licensee to use Software and Licensed Materials are “agreements supplementary to” the Subscription Agreement as such phrase is used in Section 365(n) of the Bankruptcy Code.  In the event that Licensor or any successor in interest thereto, including a debtor-in-possession or trustee, rejects this Agreement under Section 365 of the Bankruptcy Code, Licensee may elect to retain its rights and interests to the “Intellectual Property” under this Agreement to the full extent permitted by Section 365(n) of the Bankruptcy Code.

11.   Licensor may modify the terms and conditions of this EULA from time to time upon written electronic mail notice to Licensee.  A current version of the EULA then in effect will be available from Licensor’s website.  If Licensee does not accept such modification, it may cancel its subscription, terminate the Subscription Agreement, and receive a pro-rated refund