NXGN End User License Agreement

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY  
This END USER LICENSE AGREEMENT (“Agreement”) is entered into by and between the NXGN Inc Contracting Party specified in Section 1 below (the “NXGN Inc Contracting Party”) and the client entity provided with access to the Services (the “Client”), and becomes effective on the date in which the Services are made available to the Client (the “Effective Date”). The Agreement is also deemed to include the Privacy Policy and any other terms expressly referenced herein or in other incorporated documents, all of which are expressly deemed incorporated in the Agreement by this reference. The NXGN Inc Contracting Party may revise and update this Agreement from time to time in its sole discretion, with all such changes becoming effective immediately upon update. Client’s continued use of the Services following the posting of a revised Agreement is Client’s acceptance and agreement to the modified terms.

1. Definitions:

The following definitions shall apply to this Agreement:

“Account Country” is the country associated with your account with the NXGN Inc Contracting Party. If you have provided a valid tax registration number for your account, then your Account Country is the country associated with your tax registration. If you have not provided a valid tax registration, then your Account Country is the country where your billing address is located, except if you have a credit card associated with your NXGN Inc account that is issued in a different country and your contact address is also in that country, then your Account Country is that different country.

“Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“API” or “APIs” means application programming interfaces, consisting of routines, protocols, interfaces, and tools for accessing data and/or applications, as provided by the NXGN Inc Contracting Party as part of the Services.

“Authorized Users” means individuals who are authorized by Client to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by Client (or by the NXGN Inc Contracting Party at Client’s request). Authorized Users may include but are not limited to employees, consultants, contractors, and agents of Client, and third parties with which Client transacts business.

“NXGN Inc” means the NXGN Inc Contracting Party and its Affiliates.

“NXGN Inc Contracting Party” means the party that you purchase products and/or services from identified in the table below, based on your Account Country. If you change your Account Country (or a different NXGN Inc Contracting Party in your Account Country) to one identified to a different NXGN Inc Contracting Party below, you agree that this Agreement is then assigned to the new NXGN Inc Contracting Party under Section 1 without any further action required by either party.

Account Country  NXGN Inc Contracting Party  
United States   NXGN Inc Direct, LLC  
                     NXGN Inc Government LLC  
                     NXGN, Inc.  

“Client” means the Client named above and its Affiliates.

“Client Data” means all electronic data or information submitted by Client to the Services.

“Confidential Information” means: (a) NXGN Inc Technology (which is Confidential Information of the NXGN Inc Contracting Party); (b) Client Data and Client Technology (which is Confidential Information of Client); (c) any information of a party that is disclosed in writing or orally and is designated as Confidential or Proprietary at the time of disclosure (and, for oral disclosures, summarized in writing within 30 days of initial disclosure and delivered in written summary form to the Receiving Party), or that, due to the nature of the information or circumstances of disclosure, Receiving Party would understand it to be Disclosing Party’s confidential information; and (d) the specific terms of this Agreement, any proposal, any statement of work, and any amendment or attachment to any of these, between the parties (which will be deemed Confidential Information of both parties). Confidential Information excludes any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by Receiving Party; (ii) was already rightfully in Receiving Party’s possession, without restriction on use or disclosure, when Receiving Party received it under this Agreement; (iii) is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information; or (iv) was or is rightfully obtained by Receiving Party, without restriction on use or disclosure, from a third party not under a duty of confidentiality to Disclosing Party.

“Data Protection Laws” means applicable state and federal laws in the United States governing the privacy and security of Personal Information including, as applicable, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”) as amended by the California Privacy Rights Act of 2020 (“CPRA”).

“Disclosing Party” means the party that has disclosed Confidential Information to the Receiving Party.

“Governing Law” and “Governing Courts” mean, for each NXGN Inc Contracting Party, the laws and courts set forth in the following table:

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.

“Non-NXGN Applications” means online applications, third-party hosting services, and software products that are provided by third-party entities or individuals other than the NXGN Contracting Party, and that inter-operate with the Services.

“Personal Information" means any Customer information that identifies relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household in connection with the Services, including any information that qualifies as “personal data” under Data Protection Laws.

“Privacy Policy” means the following Privacy Policy, as updated from time-to-time: https://nxgn.io/privacy

“Process” or “Processing” means collect, record, store, retain, use, disclose or otherwise access.

“Receiving Party” means the party that has been provided with Confidential Information of the Disclosing Party.

“Services” means the software-as-a-service made available by the NXGN Contracting Party online, but expressly excludes Non-NXGN Applications.

“NXGN Technology” means: (a) the Services and any related documentation, technology, and methodologies (including products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects, and documentation) created by or for, or licensed to, NXGN; and (b) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals.

“Subscription” means the subscription of Services that is offered to Client and accepted by Client upon first use.

“Term” means the Services subscription term agreed to by the Client and the NXGN Contracting Party.

2. SERVICES

2.1 Provision of Services. During the Term of the Subscription, Client will receive a nonexclusive, nonassignable, non-transferable, non-sublicensable worldwide right to access and use the Services solely for its internal business operations, subject to the terms of this Agreement. Client agrees the provision of Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by the NXGN Contracting Party regarding future functionality or features.

2.2 User Subscriptions. Services are provided on a “per User” basis and may be accessed by no more than the number of Authorized Users specified by the NXGN Contracting Party, (ii) additional Authorized Users may be added during the applicable Subscription Term if authorized by the NXGN Contracting Party, and (iii) the added Authorized User Subscriptions shall terminate on the same date as the pre-existing Authorized User Subscriptions. Subscriptions are for designated Authorized Users only and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Services. Client is responsible for cancelling access rights from former Authorized Users, whether resulting from reassignment, termination of employment, or any other reason.

2.3 NXGN Responsibilities. The NXGN Contracting Party shall: (i) provide NXGN basic support for the Services to Client at no additional charge, pursuant to Section 10.5; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for : (a) planned downtime, or (b) any unavailability caused by circumstances beyond the NXGN Contracting Party’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, pandemics, strikes or other labor problems (other than those involving the NXGN Contracting Party’s employees), Internet and hosting service provider failures or delays, or denial of service attacks; and (iii) provide the Services only in accordance with applicable laws and government regulations.

2.4 NXGN Protection of Client Data. The NXGN Contracting Party shall not modify Client Data, disclose Client Data except as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below or as expressly permitted in writing by Client, or access Client Data except to provide the Services and prevent or address service or technical problems, or at Client's request in connection with Client's use of the Services.

2.5 Client Responsibilities. Client shall: (i) be responsible for the accuracy, quality, and legality of Client Data and the means by which it acquired Client Data; (ii) use the Services only in accordance with the Documentation and applicable laws and government regulations; (iii) be responsible for obtaining and maintaining any required licenses, permissions, and consents necessary to grant the NXGN Contracting Party the rights to Client Data as set forth herein; (iv) be responsible for the proper configuration and use of the Services; and (v) notify the NXGN Contracting Party promptly of any unauthorized use of the Services or any other breach of security.

2.6 Changes to Services. The NXGN Contracting Party may update or change the Services from time to time as it deems necessary or appropriate to improve the Services, so long as the changes do not materially diminish the functionality or performance of the Services.

3. CONFIDENTIALITY

3.1 Confidential Information. Each party agrees that during the Term of this Agreement and thereafter, it will hold in confidence and not disclose the Confidential Information of the other party to any third party without the other party’s prior written consent. Each party will take all reasonable precautions to protect the confidentiality of the other party’s Confidential Information, including at least the same degree of care as it uses to protect its own confidential information.

3.2 Compelled Disclosure. In the event a party is required to disclose any Confidential Information of the other party by law, regulation, or court order, such party shall provide prompt notice to the other party so that the other party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, such party shall furnish only that portion of the Confidential Information which it is legally required to disclose.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Ownership. The NXGN Contracting Party owns and retains all rights, title, and interest in and to the Services and all intellectual property rights therein. Client has no rights in or to the Services other than as expressly granted in this Agreement.

4.2 Feedback. If Client provides any feedback or suggestions regarding the Services (collectively, “Feedback”), the NXGN Contracting Party shall own all rights to such Feedback and may use it for any purpose without obligation to Client.

5. PAYMENT

5.1 Fees. Client shall pay all fees specified in the Subscription. All fees are non-refundable, except as otherwise specified in this Agreement.

5.2 Invoicing and Payment. The NXGN Contracting Party will invoice Client for fees in accordance with the Subscription, and Client shall pay each invoice within thirty (30) days of the invoice date. Any overdue payments shall incur interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.

6. LIMITATION OF LIABILITY

6.1 Exclusion of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUES, DATA LOSS, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2 Maximum Liability. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY EXCEED THE FEES PAID BY CLIENT TO THE NXGN CONTRACTING PARTY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

7. TERM AND TERMINATION

7.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated by either party as set forth herein.

7.2 Termination for Convenience. Either party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the other party.

7.3 Termination for Cause. Either party may terminate this Agreement immediately upon written notice if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice of such breach.

8. SURVIVAL

The provisions of this Agreement that are intended to survive termination or expiration of this Agreement shall survive, including without limitation, provisions regarding Confidential Information, ownership, payment, limitation of liability, and indemnification.

9. INDEMNIFICATION

Client shall defend, indemnify, and hold harmless the NXGN Contracting Party and its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with (i) Client’s use of the Services; (ii) any breach of this Agreement by Client; or (iii) any violation of applicable laws by Client.

10. MISCELLANEOUS

10.1 Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent such delay or failure is caused by circumstances beyond its reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, pandemics, strikes or other labor problems (other than those involving the employees of the party seeking relief), Internet and hosting service provider failures or delays, or denial of service attacks.

10.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter.

10.3 Amendments. No amendment or modification of this Agreement shall be effective unless in writing and signed by both parties.

10.4 Waiver. No waiver of any breach of this Agreement shall be deemed a waiver of any other breach, and no failure or delay by either party in exercising any right or remedy shall operate as a waiver of such right or remedy.

10.5 Notices. All notices under this Agreement shall be in writing and shall be deemed given when delivered personally or sent by certified mail, return receipt requested, or by reputable overnight courier service, to the addresses set forth in the Subscription or such other addresses as either party may specify in writing.

10.6 Assignment. Client may not assign or transfer this Agreement, in whole or in part, without the NXGN Contracting Party’s prior written consent. The NXGN Contracting Party may assign this Agreement without Client’s consent. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns.

10.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to its conflict of law provisions. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois for resolution of any disputes arising under this Agreement.

10.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.