Third Party Cloud Services

PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THE TERMS AND CONDITIONS OF CUSTOMER’S PURCHASE OF THIRD PARTY CLOUD SERVICES (“CLOUD SERVICES”) FROM SELLER ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM 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 RECEIVING THE CLOUD SERVICE DIRECTLY FROM THE THIRD PARTY SERVICE PROVIDER (“CLOUD SERVICE PROVIDER”) OR BY MAKING PAYMENT TO THE NXGN Inc. AFFILIATE IDENTIFIED ON THE SERVICE ORDER FORM ("SELLER"), CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND SELLER HAVE SIGNED A SEPARATE AGREEMENT WHICH EXPRESSLY GOVERNS THE RECEIPT OF CLOUD SERVICES, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.

ANY GENERAL DESCRIPTION OF THE CLOUD SERVICE AND/OR THE 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". In addition to any agreement that references or incorporates these Terms and Conditions, Customer accepts these Terms and Conditions by making a purchase from or placing an order with Seller on any Seller website or mobile application (each, a "Site"). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Customer Service Order Form will govern the order in question, unless otherwise agreed in writing by Seller and Customer.

Customer consents to receiving electronic records, which may be provided via a web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic upon written request to Seller. 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.

Customer may issue a Purchase Order 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 the Cloud Services except for Seller’s customer services order form (each, a “Service Order Form”).

Definitions

“Affiliates” means, with respect to Seller, entities that Control, are Controlled by, or are under common Control with Seller; and, with respect to Customer, entities that Control, are Controlled by, or are under common Control with Customer.

“Confidential Information” means, subject to the following sentence, any information or data of a confidential nature of a Party, its Affiliates or a third party in oral, electronic or written form that the receiving Party knows or has reason to know is proprietary or confidential and that is disclosed by a Party in connection with these Terms and Conditions or that the receiving Party may have access to in connection with these Terms and Conditions, including but not limited to the terms and conditions of each Statement of Work and/or Purchase Order. Confidential Information does not include Personal Data.

"Control" or “Controlled” means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs of another whether by ownership of shares, ability to appoint officers, contract or otherwise.

"Force Majeure Event" means any event or circumstance arising which is beyond the reasonable control of Seller (including but not limited to any industrial dispute affecting any third party, carrier delays, embargos, acts of God or acts or laws of governmental regulations or government agencies, severe weather conditions, fire, flood, disaster, failure of power, civil riot, war or terrorism).

"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.

“Party” means individually, as applicable, Seller or Customer, and “Parties” means in each instance, Seller and Customer.

"Personal Data" means data which relates to a living individual who can be identified (a) from that data, or (b) from that data and other information which is in the possession of, or is likely to come into the possession of, the controller, and includes any expression of opinion about the individual and any indication of the intentions of the controller or any other person in respect of the individual.

“Purchase Order” or “PO” means a document that is in electronic form and that contains an offer by Customer to purchase pursuant to these Terms and Conditions at a specified price as the same may be amended or modified from time to time and incorporates these Terms and Conditions.

Governing Law

THESE TERMS AND CONDITIONS AND ANY CUSTOMER SERVICE ORDER FORM WILL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN COOK COUNTY, ILLINOIS, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Customer and Seller are solely obligated to address and resolve all disputes associated with these Terms and Conditions or any Customer Service Order Form, including any damages or injuries to the Customer’s Affiliates, and all claims related to these Terms and Conditions or any Customer Service Order Form will be brought by Customer in Cook County, Illinois as provided in these Terms and Conditions. Except in the case of nonpayment, neither party nor any Affiliate 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.

Cloud Services

Customer acknowledges that it is receiving the Cloud Services directly from the Cloud Service Provider pursuant to the Cloud Service Provider’s standard terms and conditions or such other terms as agreed upon by Customer and the Cloud Service Provider (“Cloud Services Terms and Conditions”). Accordingly, Customer shall consider the Cloud Service Provider to be the contracting party and the Cloud Service Provider shall be the party responsible for providing the Cloud Services to the Customer and Customer will look solely to the Cloud Service Provider for any loss, claims or damages arising from or related to the provision of such Cloud Services.

Payment

Seller, or any of its Affiliates on behalf of Seller, may issue an invoice to Customer. All invoiced amounts and payments shall be made in United States Dollars. Any objections to an invoice must be made to Seller within fifteen (15) days after the invoice date. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month calculated daily and compounded monthly (19.56% per annum) or the highest rate allowed by law. In the event of a default in the payment of an invoice, Customer will be responsible for all of Seller's costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition to any other means available to place orders, Customer may issue a PO to Seller. POs are not binding on Seller until accepted by Seller. Any issuance of a PO is for administrative purposes only. Any additional or different terms and conditions contained in any PO will be null and void.

Export Sales

If any transaction hereunder involves an export of items (including but not limited to, commodities, software or and/or technology) from the United States subject to the Export Administration Regulations, as amended, such export shall be in accordance with such laws or regulations, as applicable. Customer agrees that it will not divert, use, export or re-export any such items contrary to any applicable Laws in the U.S., Canada, European Union (EU) or United Kingdom. Customer expressly acknowledges and agrees that it will not export, re-export, dispose of or otherwise provide such items directly or indirectly: (a) to any entity or person within any country that is subject to U.S., Canadian, EU or United Kingdom economic sanctions, as applicable, imposing comprehensive embargoes without first obtaining prior authorization from the U.S. government, Canadian government, or the UK government, as applicable and (b) to entities and persons that are ineligible under U.S, Canadian, EU or UK law, as applicable, to receive such items. In addition, manufacturers' warranties for exported Cloud Services may vary or may be null and void for Cloud Services exported from the United States.

Warranties

Customer acknowledges that Seller is not the provider of the Cloud Services purchased by Customer hereunder and the only warranties offered are those of the Cloud Service Provider, not Seller or its Affiliates. In purchasing the Cloud Services, Customer relies on the Cloud Service Provider’s service descriptions and the terms and conditions set forth in the Cloud Services Terms and Conditions only and not on any statements made by Seller or its representatives.

Non-Circumvention

In consideration of NXGN, Inc. ("Seller") identifying, introducing, and facilitating Customer's access to the Cloud Service Provider and the Cloud Services, Customer agrees that, for a period of twenty-four (24) months following the date of Customer's first purchase of Cloud Services through Seller, Customer will not, directly or indirectly, purchase, subscribe to, renew, or otherwise procure the same or substantially similar Cloud Services directly from the Cloud Service Provider, or through any reseller, agent, or intermediary other than Seller, without Seller's prior written consent. This restriction applies to any affiliate, subsidiary, or related entity of Customer. Customer acknowledges that a breach of this provision would cause irreparable harm to Seller for which monetary damages would be an inadequate remedy, and that Seller shall be entitled to seek equitable relief, including injunction and specific performance, in addition to all other remedies available at law or in equity.

Subscription Renewals

No renewal, extension, or expansion of any Cloud Services subscription shall be effective unless authorized by a new written quote issued by Seller and accepted by Customer in writing or by issuance of a Purchase Order referencing such quote. Customer acknowledges that the Cloud Service Provider's subscription terms and any auto-renewal provisions contained therein do not create a binding obligation between Customer and Seller for any renewal period unless and until Seller has issued a renewed quote and Customer has accepted it. Seller will use commercially reasonable efforts to notify Customer of any upcoming subscription renewal no fewer than sixty (60) days prior to the renewal date, but failure to provide such notice shall not create any obligation on Seller's part to renew or continue the Cloud Services.

Cloud Service Provider Agreement Changes

Customer acknowledges that the Cloud Service Provider may modify, update, or replace its standard terms and conditions (including any master service agreement, acceptable use policy, data processing agreement, or service level agreement) from time to time at its sole discretion. Seller will use commercially reasonable efforts to notify Customer in writing within thirty (30) days of becoming aware of any material adverse change to the Cloud Service Provider's terms and conditions that directly affects Customer's rights or obligations under the applicable Cloud Services. In the event of any such material adverse change, Customer may, upon thirty (30) days' written notice to Seller, terminate the affected Cloud Services subscription without penalty for any fees attributable to the period after the effective date of termination, provided that Customer has fulfilled all payment obligations for Cloud Services received prior to such termination. Seller's liability for failure to provide such notification is limited to the remedies set forth in the Limitations of Liability section of these Terms and Conditions.

Limitations of Liability

SELLER’S LIABILITY, IF ANY, TO CUSTOMER, OR ANY OF ITS AFFILIATES, FOR ANY CLAIMS RELATING TO CLOUD SERVICES WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SELLER FOR THE CLOUD SERVICES. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, OR DATA, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Entire Agreement

These Terms and Conditions, along with any other agreement or terms referenced herein, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements or understandings between the Parties with respect to the subject matter hereof.

Amendments

No modification, amendment or waiver of any provision of these Terms and Conditions will be effective unless in writing and signed by an authorized representative of each Party.