Terms and Conditions of SOW Services Only

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY.

THE TERMS AND CONDITIONS OF SERVICE PROJECTS ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT DELIVERED BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.

BY ENGAGING THE NXGN INC. AFFILIATE IDENTIFIED ON THE INVOICE, STATEMENT OF WORK, OR OTHER NXGN INC. DOCUMENTATION ("SELLER") TO PERFORM OR PROCURE ANY SERVICES, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND SELLER HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.

ANY GENERAL DESCRIPTION OF THE TYPES OF SERVICES AND RESULTS THEREOF POSTED ON ANY SELLER WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN SELLER AND CUSTOMER.

Important Information About These Terms and Conditions

These Terms and Conditions constitute a binding contract between Customer and Seller and are referred to herein as either "Terms and Conditions" or this "Agreement". Customer accepts these Terms and Conditions, which are firm as of the SOW Effective Date, through the Term of the applicable SOW, by engaging Seller to perform or procure any Services. These Terms and Conditions do not govern the purchase of any items such as, but not limited to, hardware and software that are commercially available through Seller’s catalog or otherwise (collectively, “Products”) or services that are provided by third parties.

Customer consents to receiving electronic records, which may be provided via a web browser or email application connected to the Internet. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.

Any purchase order from Customer is for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties for the performance of Services other than Third Party Services (each, a “Statement of Work”). This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic, or implied, if any, between the parties with respect to the subject matter hereof.

Governing Law

THESE TERMS AND CONDITIONS, ANY STATEMENTS OF WORK, AND THE SERVICES HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Seller under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.

Services

Customers may order services (collectively, "Services") from or through Seller from time to time. Where Services are ordered in a Statement of Work, each Statement of Work hereby incorporates these Terms and Conditions and constitutes a separate agreement with respect to the Services performed. Seller, or any of its Affiliates on behalf of Seller, may execute a Statement of Work. In the event of an addition to or a conflict between any term or condition of the Statement of Work and these Terms and Conditions, these Terms and Conditions will control, except as expressly amended in the applicable Statement of Work by specific reference to this Agreement.

Cooperation

In addition to any specific Customer duties set forth in any applicable Statement of Work, Customer agrees to cooperate with Seller in connection with the performance of the Services by providing: (i) timely responses to Seller's inquiries and requests for approvals and authorizations, (ii) access to any information or materials reasonably requested by Seller which are necessary or useful as determined by Seller in connection with providing the Services, including, but not limited to, physical and computer access to Customer's computer systems, and (iii) all Required Consents necessary for Seller to provide the Services.

Seller will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Seller from time to time.

Access

Seller may perform the Services at Customer's place of business, at Seller's own facilities, or such other locations as Seller and Customer deem appropriate. When the Services are performed at Customer's premises, Seller will attempt to perform such Services within Customer's normal business hours unless otherwise jointly agreed to by the parties.

Payment

Terms of payment are within Seller's sole discretion. Invoices are due and payable net 30 days from the date of invoice, subject to continuing credit approval by Seller. Seller, or any of its Affiliates on behalf of Seller, may issue an invoice to Customer. Seller may invoice Customer for all of the Services described in a Statement of Work or any portion thereof. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law.

Export Sales

If this transaction involves an export of items subject to the Export Administration Regulations, such items were exported from the United States by Seller in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export, or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions.

Warranties

Seller warrants that the Services will be performed in a good and workmanlike manner. Customer's sole and exclusive remedy and Seller's entire liability with respect to this warranty will be, at the sole option of Seller, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies Seller in writing within five (5) business days after performance of the applicable Services.

Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage, or corruption.

General Indemnification

Each party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its officers, directors, and employees (“Indemnified Party”) for any damages, judgments, costs, and expenses (including attorney’s fees) or losses to the Indemnified Party arising from a Claim during the performance of this Agreement. “Claims” are defined as (i) claims brought by an unaffiliated third party for death or personal physical injury, or (ii) damage to tangible personal property suffered or incurred by the Indemnified Party, to the extent (i) and (ii) are proximately caused by the gross negligence or willful misconduct of the Indemnifying Party. Notwithstanding the foregoing, Seller will not be liable, through indemnification or otherwise, for any loss, damage, expense, liability, action, suit, or proceeding allegedly caused, directly or indirectly, by the Products, or arising out of loss or damage to software or the data processed by such software or hardware, or any loss of use of Products. Claims do not include any damages, judgments, costs, expenses, or losses caused, directly or indirectly, by Products or otherwise excluded in this Agreement.

The obligation of the Indemnifying Party to indemnify, defend, and hold the Indemnified Party harmless is contingent upon the Indemnified Party providing the Indemnifying Party with (i) prompt written notice of and description of each Claim; (ii) sole authority to defend or settle any such Claim; and (iii) all reasonable assistance, at the Indemnifying Party’s expense, in any such defense. In no event shall the Indemnifying Party settle any Claim that involves a remedy other than the payment of money without the prior consent of the Indemnified Party.

IP Indemnification

Seller shall indemnify, defend, and hold Customer and its affiliates and their respective directors, officers, employees, and agents harmless from all damages, judgments, settlements, losses, and expenses (including reasonably attorneys’ fees) arising out of or resulting from any third-party claim, and part of a final judgment, brought against Customer alleging that any Service infringes any presently existing United States patent, copyright, or trade secret of any third party. Seller will pay reasonable attorneys’ fees and expenses on behalf of Customer, PROVIDED THAT Customer shall (i) notify Seller promptly in writing of any such claim; (ii) permit Seller to have sole control of the defense, compromise, or settlement of such claim, including any appeals, provided that it is diligently pursuing such claim; (iii) not make any settlement offers without the prior written consent of Seller, which shall not be unreasonably withheld; (iv) cooperate with Seller, as reasonably requested by Seller, in the defense or settlement of such claim; and (v) the claim does not arise as a result of any breach by Customer of a term of any applicable license.

Seller shall have no obligation to indemnify Customer for any intellectual property right infringement claim to the extent that it is based on (i) the use or combination of the Services with software, hardware, or other materials not owned, developed, recommended, or approved (in a signed change order or SOW) provided by Seller; (ii) the use of the Services in a manner other than that for which it was designed or contemplated as evidenced by Seller's documentation; (iii) any unauthorized modification of the Services by Customer or any other party seeking indemnification; (iv) any compliance with designs, plans, instructions, directions, or specifications provided by Customer; (v) Customer’s distribution, marketing, or use for the benefit of third parties of the Services; or (vi) Customer’s failure to use corrections or enhancements made available by Seller to Customer at no additional cost, and such failure would have prevented such infringement. If any Service is, or in Seller’s reasonable opinion, likely to be held to be infringing, Seller will at its expense and option and as Customer’s sole and exclusive remedy, promptly either (a) procure the right for Customer to continue using it, (b) replace it with a non-infringing equivalent, (c) modify it to make it non-infringing, or (d) direct the return of the Deliverable and refund to Customer the fees paid for such Services, based on a five (5) year amortization.

Pricing Information; Availability Disclaimer

All project scheduling is subject to the availability of Supplier personnel to perform the Services. If Services are being performed on a time and materials basis, any estimates provided by Seller are for planning purposes only.

Credits

Any credit issued by Seller to Customer for any reason must be used within two (2) years from the date that the credit was issued and may only be used for future purchases of Services. Any credit or portion thereof not used within the two (2) year period will, upon written request by Customer, be sent to Customer at the address given in Notice, in the same manner as tendered to Seller.

Limitation of Liability

UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS, OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY OTHER THAN AS SPECIFICALLY PROVIDED UNDER GENERAL INDEMNIFICATION AND IP INDEMNIFICATION; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY LOST, DAMAGED, OR CORRUPTED DATA OR SOFTWARE. OTHER THAN CLAIMS ARISING SOLELY FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.

Limited License

Customer's sole rights to the work product, materials, and other deliverables to be provided or created (individually or jointly) in connection with the Services, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis, and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials ("Work Product") will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer's internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever.

Confidential Information

Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates, or a third party ("Confidential Information") to the other party in the performance of this Agreement and any Statement of Work. Confidential Information means any information or data in oral, electronic, or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Statement of Work. Confidential Information will not include information which: (a) becomes known to the public through no act of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees, or subcontractors of the receiving party who have not had access to such information.

Termination

Either party may terminate performance of a Service or a Statement of Work for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Services or a Statement of Work, Customer will pay Seller for all Services performed and expenses incurred up to and including the date of termination.

Termination Without Cause

Unless otherwise stated in a Statement of Work, either party may terminate performance of a Service or a Statement of Work without cause upon fourteen (14) days advance-written notice.

Miscellaneous

Seller may assign or subcontract all or any portion of its rights or obligations with respect to the performance of Services or assign the right to receive payments, without Customer's consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement or any Statement of Work will be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification is in writing and signed by both parties. The relationship between Seller and Customer is that of independent contractors and not that of employer/employee, partnership, or joint venture. If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.

Arbitration

Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether preexisting, present, or future, and including, but not limited to, statutory, common law, intentional tort, and equitable claims) arising from or relating to the Products, the Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller's or any of its Affiliates' advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Chicago, Illinois. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery, or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.

International Services

If and to the extent that any Statement of Work involves the provision of Services remotely by Seller to a Customer location outside of the United States, the following additional terms shall apply with respect to those Services only.

Customer will pay for, and will indemnify, defend, and hold Seller and its Affiliates and each of their respective directors, officers, employees, and agents harmless from loss (of any kind), cost, damage, or expense (including, but not limited to, attorney’s fees and expenses) arising out of any Taxes. Customer must claim any exemption from such taxes, fees, or charges at the time of purchase and provide Seller with the necessary supporting documentation. Any taxes, charges, fees, penalties, and interests in respect thereof that are the responsibility of Customer hereunder may be invoiced by Seller in the Product or Services invoices or separately. For purposes of this Section, “Taxes” means any applicable sales, use, transaction, value added, goods and services tax, harmonized sales tax, withholding tax, excise, or similar taxes, and any foreign, provincial, federal, state, or local fees or charges (including but not limited to, environmental or similar fees) and any income or business tax liability, including any penalties and interest in respect thereof, imposed on, in respect of or otherwise associated with any transaction hereunder, or the Purchased Items (except taxes on or measured by the net income of Seller).

If the Laws or a governmental authority imposes or adopts regulation, or there is a change in the Laws, which requires Seller or any of its Affiliates to register and/or obtain a governmental license, permit, or consent to make the Services available within a jurisdiction, Seller has the right not to make available or terminate the Service to the Customer’s Affiliate(s) in such jurisdiction without any liability whatsoever to the Customer or its Affiliates. For purposes of this Agreement, “Laws” means any applicable federal, state, provincial, local, municipal, regional, foreign, international, multinational or other constitution, law, statute, treaty, rule, regulation, regulatory or legislative requirement, ordinance, license, restriction, judicial or administrative order, code, common law or other pronouncement having the effect of law.

Customer and Seller are solely obligated to address and resolve all claims, controversies, or disputes associated with the provision of Services (including any damages or injuries to a party’s foreign Affiliates) in the United States as provided in the Arbitration clause above. In the event a party’s foreign Affiliate brings suit or makes a claim or demand against the other party or an Affiliate of the other party located outside of the United States, such party will work with its foreign Affiliate to dismiss the suit, claim, or demand, and such party will bring such suit, claim, or demand against the other party directly in the United States instead. In addition, such party will reimburse the other party or the other party’s Affiliates for any of the costs or expenses that the other party or the other party’s Affiliates reasonably incurred while responding to the suit, claim, or demand brought by such party’s foreign Affiliate.