MASTER SERVICES AGREEMENT

 

This Master Services Agreement (“Agreement”) is entered into as of the “Effective Date”, as described in the SOW. If the SOW has not been executed, then the Effective Date shall be determined as the first use of any Service of CareTree by the Client. This Agreement is by and between CareTree, Inc., an Illinois corporation ("CareTree”) and Client”, as described in the SOW or as originally registered as within the CareTree software service.

 

WHEREAS, CareTree is in the business of providing a software as a service solution that enables patients, caregivers and healthcare providers to interact and communicate to facilitate care coordination and management services of the applicable patient (“SaaS Services”),

 

WHEREAS, Client desires to engage CareTree to provide such SaaS Services and other services as set forth in an SOW and CareTree desires to be so engaged.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby agree as follows:

 

1. Services.

1.1 Services; Statement of Work. CareTree shall provide the SaaS Services and other services as described in the duly executed statements of work under this Agreement which shall be incorporated herein and made part of this Agreement (“SOW(s)”). Neither party will have any obligation with respect to any draft SOW unless and until it is executed by both parties. Except as otherwise provided herein, if any terms or conditions of this Agreement conflict with any terms or conditions of any SOW, the SOW’s terms and conditions will control solely with respect to the SaaS Services covered under such SOW.

1.2 Training Service. CareTree will provide Client with access to documents online through its website and such documents will outline features of the service (collectively “Training Services”). Upon the Client’s request, additional phone and/or email Training Services may be provided during regular business hours at CareTree’s then-current rates. SaaS Services and other services set forth in the SOW and Training Services shall collectively be referred to herein as “Services.

1.3 Use of the Services. Client is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (specifically including responsibility for providing appropriate personal computers and mobile devices) needed for it and its authorized users to access the SaaS Services.

1.4 Illegal Use. Client shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the SaaS Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. Virus” shall mean any thing or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices. Notwithstanding anything herein to the contrary, CareTree reserves the right, without liability to the Client, to disable or suspend the Client’s access to the SaaS Services in the event (a) of any breach or anticipated breach of this Agreement (b) Client and/or its users use of the Services disrupts or poses a security risk to the Services and/or any other Client, may harm CareTree’s systems and/or any provider of any third-party services and/or may subject CareTree and/or any third-party to liability; (c) Client and/or its authorized users are using the Services for fraudulent or illegal activities; and/or (d) CareTree’s continued provision of any of the Services to the Client and/or its users is prohibited by applicable law.

1.5 Client Data. Client is responsible for providing all Client data and/or information and responsible for the accuracy, quality, integrity and legality of such data and of the means by which authorized users access and use the Client data. Client hereby grants CareTree a worldwide, non-exclusive right and license to reproduce, distribute and display the Client Content as necessary to provide the Services. Client represents and warrants that Client owns all Client Content or that Client has permission from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary for CareTree to use the Client Content in connection with the Services. Client and its licensors retain title, all ownership rights, and all IP (as defined in Article 7), in and to the Client Content and reserve all rights not expressly granted to CareTree hereunder. Client Content” means any elements of text, graphics, images, photos, designs, artwork, logos, trademarks, service marks, and other materials or content which Client provides in connection with any Services. Client Content excludes any content available in the public domain; and any content owned or licensed by CareTree, whether in connection with providing Services or otherwise.

1.6 Data Security. Client acknowledges and agrees that CareTree utilizes third-party service providers to host and provide the SaaS Services and store Client data and the protection of such data will be in accordance with such third party’s safeguards for the protection and the security and confidentiality of Client’s data. Client is responsible for properly configuring and using the SaaS Service and taking appropriate steps to maintain security, protection and backup of all Client Content and data.

1.7 Unauthorized Access. CareTree is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, Client Content and data or other information that Client or its users submits and/or uses in connection with the Services (including as a result of Client errors, acts or omissions).

 

2. Use; Maintenance; Prohibited Conduct.

2.1 Right to Use. Subject to CareTree’s receipt of the Fees for the SaaS Service and provided Client is using such SaaS Service in accordance with the terms and conditions set forth herein and in the applicable SOW, CareTree hereby grants Client the right to access and use the SaaS Service during the term solely for the Client’s business operations and in accordance with the terms set forth herein. Client acknowledges and agrees it will abide by CareTree’s terms of use https://web.caretree.me/terms and privacy policy https://web.caretree.me/privacy, as may be changed from time to time by CareTree in its sole and absolute discretion, and which such then-current version shall be incorporated herein by reference.

 

2.2 Permitted Use. Client will ensure that its users of the Services abide by the terms and conditions of this Agreement and Client acknowledges and agrees that it shall be fully liable for any breach of the terms set forth herein. The Client will determine the access controls for its users and will be liable for activity occurring under Client’s account, including compliance with the terms and conditions of this Agreement. Client agrees to: (i) maintain the accuracy and completeness of information provided to CareTree and agrees to provide any changes to CareTree within thirty (30) days of any such change, and (ii) notify CareTree immediately of any unauthorized access to, or use of the Services.

2.3 Maintenance. During the term or as otherwise specified in the applicable SOW, CareTree will make available to the Client updates, patches and bug fixes with respect to the SaaS Service as may, from time to time, be developed and made generally available by CareTree to its Clients.

2.4 Prohibited Conduct. Except as expressly permitted hereunder, Client shall not, directly or indirectly, without the express, prior written consent of CareTree: (i) use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, or transfer the SaaS Service or any portion thereof, or any of Client’s rights thereto; (ii) merge any SaaS Service or any portion thereof with any other program or materials; (iii) reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any SaaS Service or any other compiled software provided or made available by CareTree hereunder; (iv) adapt, translate, localize, port, or otherwise modify any SaaS Service or any other compiled software provided or made available by CareTree hereunder; (v) remove, obliterate, or cancel from view any copyright, trademark, or other proprietary or confidentiality notice or legend appearing on or in any materials provided or made available by CareTree hereunder, or fail to reproduce any such notice or legend on any copy made of any such materials; (vi) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the SaaS Service, CareTree’s business operations or other Clients; and (vii) permit any other user, person or entity to engage in any of the foregoing conduct.

 

3. Fees.

3.1 Fees. In consideration of the provision of Services described herein and/or in any SOW, Client shall pay CareTree the fees set forth herein and in the applicable SOW (“Fee(s)”). All fees, expenses and taxes due hereunder will be paid in U.S. dollars. All fees due and payable by Client to CareTree hereunder must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.

3.2 Invoices. Unless otherwise set forth in an SOW, CareTree may provide Client with a monthly invoice in arrears for Fees that become due hereunder and such invoice shall be due and payable upon Client’s receipt of such invoice.

3.3 Credit Card Payments. Client may elect to pay fees due hereunder via credit card. Upon CareTree’s request, Client agrees to promptly complete and submit a credit card authorization form to CareTree. Client authorizes CareTree to automatically charge such credit card for the Fees in advance or as otherwise agreed to by the parties in the applicable SOW.

3.4 Expenses. Client shall promptly reimburse CareTree for any out-of-pocket expenses reasonably incurred in connection with the performance of the Services.

3.5 Taxes. Fees are exclusive of applicable taxes. Client is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement (collectively, “Taxes”) except for taxes based on CareTree’s net income and/or payroll taxes. Client will indemnify, defend and hold harmless CareTree for all taxes imposed which may be attributable to the Services.

3.6 Out of Scope Services. In the event Client requests additional Services outside the scope of Services described herein or the applicable SOW, then Client shall submit such request in writing to CareTree. Thereafter, the parties shall memorialize any agreed upon changes in writing via amendment to the SOW or enter into a new SOW.

3.7 Late Payment. In the event Fees are not paid on a timely basis, including without limitation due to an invalid or expired credit card number, interest will be payable and calculated daily at a rate of 2.0% per month. Client shall be liable for any and all costs related to any credit card transaction disputes. In the event of such dispute, Client shall pay CareTree a service charge in the amount of Seventy Five Dollars ($75.00). CareTree may, in addition to other available remedies, disable the password, account and access to all or part of the SaaS Services if any Fees are not paid within the date such Fees are due and payable hereunder. In the event of the foregoing, CareTree shall not be obligated to provide any or all of the Services until such Fees are paid in full. Client acknowledges and agrees that CareTree shall not be in breach of this Agreement or liable for failure to perform in the event Client fails to make payments when due hereunder.

3.8 Invoice Dispute Process.

3.8.1           Process. If Client receives an invoice which it reasonably believes, acting in good faith and with proper supporting evidence, specifies a charge which is not valid and properly due (“Disputed Charge”), then Client shall notify CareTree in writing (“Dispute Notice”) within ten (10) calendar days from the date such invoice is received to notify CareTree that it has a bona fide dispute in relation to the amount invoiced. For avoidance of doubt, disputed invoices do not relieve Client of paying invoices in full on or before the date in which such payments are due. Client shall specify reasonable details of the nature of the dispute in the Dispute Notice. The parties shall discuss the Disputed Charge within five (5) calendar days of the date of the Dispute Notice. In the event the Disputed Charge is not resolved within such time period, then the matter shall be escalated to an executive officer of each party. Such executives shall initially discuss the Disputed Charge within five (5) calendar days of receipt of notice and have up to ten (10) calendar days to seek commercially reasonable efforts to resolve the Disputed Charge. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to a court of competent jurisdiction as set forth in Article 15.

3.8.2           Resolution of Dispute. When the dispute is resolved, any payment to be made to CareTree, or amount to be refunded to Client, as the case may be, shall be made within ten (10) calendar days of the resolution of such Disputed Charge.

3.8.3           Confidentiality. For avoidance of doubt, all negotiations pursuant to this Section shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.

3.8.4           No Notice. In the event CareTree does not receive a Dispute Notice within such ten (10) day period, then the relevant invoice shall be deemed to be correct and shall be paid in full in accordance with the terms and conditions of this Agreement or the relevant SOW.

 

4. Term

4.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the terms and conditions set forth herein.

4.2 SOW’s. The term of the SOW will commence on the date set forth in the SOW and continue thereafter as set forth in such SOW, unless otherwise terminated earlier in accordance with the terms of such SOW and/or this Agreement.

 

5. Termination.

5.1 Termination for Breach. If a party materially breaches this Agreement and/or any SOW (the "Defaulting Party"), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or any SOW upon written notice to the Defaulting Party. Termination of this Agreement and/or SOW will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, the applicable SOW, at law and/or in equity.

5.3 Effect of Termination. In the event of termination, Client will pay all outstanding Fees, charges and expenses owed through the then-current term of this Agreement and/or the applicable SOW.

 

6. Confidentiality

6.1 Business Associates Agreement. This Agreement is made pursuant to and incorporates herein by reference the terms and conditions of the Business Associates Agreement (“BAA”), https://web.caretree.me/baa. Client acknowledges and agrees it will abide by CareTree’s BAA, as may be changed from time to time by CareTree in its sole and absolute discretion, and which such then-current version shall be incorporated herein by reference. Unless otherwise noted and expressly agreed upon by both parties, the BAA shall supersede the MSA.

6.2 Confidential Information. During the term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement ("Confidential Information"). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”

6.3 Receiving Party. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.

6.4 Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.

6.5 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a "Legal Requirement"), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

6.6 Confidentiality Breach. The parties agree that ownership of any IP (as defined in Article 7) in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party.

6.7 Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Article 6, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.

6.8 Remedy. Each party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. The terms of this Article 6 shall survive the expiration or termination of this Agreement.

 

7.                   Ownership.

7.1 Intellectual Property. CareTree retains all rights, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to Client by CareTree hereunder. IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to Client in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, customizations, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of CareTree and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Client, Client hereby assigns such ownership rights to CareTree).

7.2 Rights. CareTree confirms that it has all the rights necessary to provide the SaaS Services described herein and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

 

8.                   Warranties.

8.1 CareTree Warranty. CareTree represents and warrants that (i) the SaaS Service will perform substantially in accordance with the terms set forth herein and in the applicable SOW, (ii) it will, at all times, comply with all applicable local, state, federal and foreign laws in providing the Service, and (iii) it has taken all action necessary for the approval and execution of this Agreement. The warranty set forth in this Section 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to CareTree’s instructions, or modification or alteration of the Service by any party other than CareTree and/or authorized by CareTree in writing.

8.2 Client represents and warrants that (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Service and (ii) it has the requisite legal and corporate power, right, and authority to enter into this Agreement.

8.3 Remedy. Client’s sole and exclusive remedy and CareTree’s sole and exclusive liability for any breach of CareTree’s warranties set forth herein is for CareTree to use commercially reasonable efforts to correct any non-conformance within a reasonable period of time or provide Client with an alternative means of accomplishing the desired performance; provided that Client notifies CareTree of such breach in writing within thirty (30) days after the date of CareTree’s alleged breach.

8.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT, CARETREE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND MATERIALS ARE PROVIDED BY CARETREE ON AN “AS-IS” bASIS. CARETREE DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY CARETREE IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. CARETREE DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICE AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. CARETREE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.

 

9. Limitation of Liability

CARETREE’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CLIENT TO CARETREE FOR THE SERVICES PROVIDED UNDER THE APPLICABLE SOW THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL CARETREE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

10. Indemnification

10.1 Indemnification by CareTree. CareTree agrees to indemnify, defend and hold harmless Client, its members, trustees, employees, agents, officers and officials, from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of, or relating to, any claim (“Claim”) that Client’s use of the Services constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Notwithstanding anything herein to the contrary, the indemnity in this Section 10.1, shall not apply (i) to a Claim arising from any modification of the Services by Client or any third party, or from the use of the Services in a manner contrary to those specific business functions outlined in the SOW and/or as expressly provided under this Agreement, to the extent such modification or use resulted in the Claim, (ii) if such Claim results from Client’s use of the Services after notice of the alleged or actual infringement from CareTree or any appropriate authority, and/or (iii) in the event of any breach of Client’s obligations under this Agreement, or the use of the Services other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement. The indemnities set forth herein shall survive the termination of this Agreement.

10.2 Indemnification by the Client. Client shall indemnify, defend and hold CareTree and its officers, associates, employees, contractors and agents harmless from and against all Claims arising out of or related to (i) Client’s acts and/or omissions, (ii) Client’s breach of the terms of this Agreement and/or any SOW, (iii) Client’s failure to use the Services in accordance with the terms and conditions set forth herein and/or in any SOW, and/or (iv) CareTree’s use of Client’s IP and/or Client Content constitutes an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party.

10.3 The indemnified party shall: (i) provide notice to the indemnifying party of any Claim immediately upon becoming aware of the same; (ii) provide the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party; and (iii) act in accordance with the reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at its sole expense.

10.4 Claim. In the event of a Claim related to either party’s IP infringement indemnification obligations described herein, the indemnifying party shall be entitled at its own expense and option to (i) procure the right for indemnified party to continue utilizing the IP which is at issue; (ii) modify the IP to render same non-infringing; or (iii) replace the IP with an equally suitable, functionally equivalent, compatible, non-infringing IP. If none of the foregoing is possible as determined by the indemnifying party in its sole and absolute discretion, the indemnifying party may terminate this Agreement and/or SOW without liability upon written notice to indemnified party. This Section sets forth the indemnified party’s sole and exclusive remedy for any Claim related to either party’s IP infringement indemnification obligations described herein.

 

11. Independent Contractor

It is understood and agreed that the relationship of CareTree to Client is and shall continue to be that of an independent contractor and neither CareTree nor any of CareTree’s employees shall be entitled to receive Client employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship between Client and CareTree for any purpose or create obligations of such party to third parties. As an independent contractor, CareTree agrees to be responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to compensation paid by Client.

 

12. Force Majeure

Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for sixty (60) days due to such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement and/or any SOW, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.

 

13. Notices

All notices required under this Agreement shall be in writing and sent to the addresses and persons designated in the preamble or to such other addresses as may be designated by a party in writing. All notices shall be deemed received when (i) delivered personally; (ii) sent by facsimile with confirmation receipt; or (iii) one (1) day after deposit with an overnight courier specifying next day delivery, with written verification of receipt.

 

14. Assignment

This Agreement may be assigned by CareTree at any time and for any reason. This Agreement shall not be assigned, delegated or transferred by Client without prior written consent from CareTree. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.

15. Governing Law

This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this Agreement shall take place exclusively in the courts situated in the City of Chicago, Cook County, Illinois and the parties hereby submit to the venue of the courts situated therein.

 

16. Miscellaneous

16.1 Changes to Services. CareTree expressly reserves the exclusive right to, without prior notice, at any time and from time to time: (i) offer new, additional or substitute products and services; and (ii) modify, amend or discontinue offering all or any particular Services.

16.2 Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.

16.3 Recitals. The recitals are hereby incorporated into and made a part of this Agreement.

16.4 Severability. If any one or more of the provisions of this Agreement and/or SOW are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.

16.5 Survival. Any provision of this Agreement and/or SOW which, by its nature, would survive termination of this Agreement and/or SOW will survive any such termination of this Agreement and/or SOW.

16.6 Headings. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.

16.7 Amendment. Client agrees that CareTree may make modifications of or amendments to this Agreement and/or SOW. These shall be effective unless such modification or amendment is not allowed as a part of the SOW and in writing and signed by both parties hereto. Any prior agreements or representations, either written or oral, relating to the subject matter of this Agreement are of no force or effect.

16.8 Counterparts. This Agreement and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed by an authorized representative of each of the relevant entities.

16.9 Entire Agreement. This Agreement, together with the applicable SOW, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.

16.10 Execution and Electronic Signature. This Agreement, to the extent signed and delivered by means of a facsimile machine or electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. The parties agree that an electronic signature is the legal equivalent of its manual signature on this Agreement. The parties agree that no certification authority or other third party verification is necessary to validate its electronic signature and that the lack of such certification of third party verification will not in any way affect the enforceability of the parties’ electronic signature or any resulting agreement between CareTree and Client.

Unless otherwise noted, signature of the SOW shall also serve as signature or agreement to this Agreement. If the SOW does not exist, then use of CareTree services by the Client shall be deemed signature or agreement to this Agreement.