Master Service Agreement

CAREGRAPHY MASTER SOFTWARE AS A SERVICE (SAAS) AGREEMENT

THIS MASTER SAAS AGREEMENT (“AGREEMENT”) BETWEEN CAREGRAPHY (“COMPANY”, “WE” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SERVICES UNDER THIS AGREEMENT (“CUSTOMER” OR “YOU” AND TOGETHER WITH CAREGRAPHY, THE “PARTIES”) GOVERNS CUSTOMER’S ACCESS AND USE OF THE SERVICES.

BY ACCEPTING THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT CONNECT, ACCESS, OR USE THE SERVICES IN ANY MANNER. ANY SOFTWARE PROVIDED IN CONNECTION WITH THE SERVICES, IS BEING LICENSED AND NOT SOLD TO YOU.

BY ACCEPTING THESE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.

This Agreement is effective between Customer and Caregraphy as of the date of Customer’s accepting this Agreement (the “Effective Date” as outlined in Annex 1 below).

Preamble

Caregraphy has developed, and owns an internet-based Software Application, for use by organisations in the Health and Social Care industry, whereby this software application is designed to be a data processing system and repository for data records of your organisation. Such solutions are provided to customers on a Software as a Service (SaaS) basis; and

This Agreement governs the Parties’ relation in connection with Customer’s subscription, as well as its End User’s (as defined below), access to, and usage of the Service (as further defined below).

1. General

Customer will subscribe to the Caregraphy Service by executing a registration form and this Service Agreement which shall define: (i) the subscription term (ii) the consideration to be paid by Customer; (iii) where applicable – certain usage limits, such as the number of End Users (as defined below) to whom the Service can be made available on a monthly basis; (iv) where applicable – the provision of Professional Services (as defined below); (v) any other subscription terms that may be agreed upon by the Parties. Upon expiration of an applicable subscription period, the service may be renewed by making a renewal payment subject to the terms defined in this Service Agreement.

Caregraphy’s Subscription Services and/or Professional Services shall be referred to as the “Service”.

Each Registration Form and Renewal executed by the Parties is governed by this Agreement and is subject thereto.

2. Right to Use the Service

2.1. Right to Use the Service. Subject to the terms and conditions of this Agreement, Caregraphy grants to Customer a non-exclusive, non-transferable, non-sub-licensable, limited right to access and use the Service during the subscription term, and in accordance with the usage terms set forth herein and in the applicable Registration Form.

For the purpose of this Agreement or any applicable Registration Form, “End User(s)” means individual(s) for whom the Subscription Services load.

2.2. Usage Restrictions. Other than the rights expressly specified in this Agreement, no other right or interest whatsoever is granted to Customer in connection with the Service or to the solutions to which it provides access. Without limiting the foregoing, Customer may not: (i) use the Service for purposes other than the purposes for which it is intended as defined in this Agreement and/or; (ii); rent, lease, lend, sell, sublicense, assign, distribute, or transfer in whole or in part the right to use the Service or any part thereof; (iii) bypass or breach any security device or protection used by the Service; (iv) input, upload, transmit, or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or that contain, transmit, or activate any harmful code; (v) use the Service in any illegal manner or in any way that infringes the right of any third party.

3. Professional Services

If an applicable subscription includes the provision of certain professional services (which typically include implementation, training with respect to the use of the Service, or assistance in creating Outputs (as defined below)) The Professional Services shall be provided remotely (and not at Customer’s site).

4. Consideration; Taxes

4.1. Consideration. Customer will timely pay all fees for the Service (“Subscription Fees“), as specified in an applicable invoice.

4.2. Subscription Fees. The Subscription Fees constitute the consideration for the Caregraphy’s solution. The fees for the Service are based on the Service purchased and not on actual usage thereof, and fees paid are non-refundable. Notwithstanding the aforementioned, in an event of termination for cause according to Section 11.2. below, due to a material breach by Caregraphy, the foregoing shall not apply to amounts paid for the Service in advance, but which are unused on the date of termination.

4.3. Invoicing. Customer is responsible for providing complete and accurate billing and contact information to Caregraphy.

4.4. Taxes. Caregraphy’s fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any government, state, or local tax authority with respect thereto including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder.

5. Privacy and Data Protection; Security

5.1. For the purpose of this MSA, Parties’ rights and obligations with respect to the data processing activities shall be subject to the Data Processing Agreement (“DPA”) attached as an Addendum below (see Appendix 1 ).

5.2. Customer’s Undertakings. Customer shall be solely responsible for obtaining all consents and authorisations as may be required by any applicable law, for the collection, storage and processing of information and/or special category/sensitive information by Caregraphy according to Customer’s instructions.

5.3. Security. Caregraphy complies with security standards, such as encryption of data in motion over public networks. Furthermore, Customer’s information is stored with logical separation from information of other customers. In addition, Caregraphy shall have in place and shall comply with documented written policies and procedures, periodically reviewed, covering the administrative, physical, and technical safeguards in place and relevant to the access, use, loss, alteration, disclosure, storage, destruction, and control of information.

6. Proprietary Rights

6.1. Caregraphy’s Rights. Caregraphy owns and shall retain all right, title, and interest, including Intellectual Property Rights (as defined below), in and to the Service and the solutions provided thereby, and all the underlying software and technology, all as may be updated, improved, modified, or enhanced from time to time; and further – in and to the brand names, logos and trademarks related to the foregoing. In addition, subject to Customer’s ownership rights pursuant to Section 6.2 below, Caregraphy owns and shall retain all rights, including Intellectual Property Rights in and to the Outputs of the Service, generated by Caregraphy, including the content created by Caregraphy and the default designs and “look and feel” thereof.

For the purpose of this Agreement, “Intellectual Property Rights” means any and all intellectual property rights, whether registered or not, worldwide including, without limitation, all the following: (i) copyrights, including moral rights, registrations and applications for registration thereof; (ii) computer software programs, data and documentation; (iii) patents, patent applications and all related continuations, divisional, reissue, design patents, applications and registrations thereof, certificates of inventions; and (iv) trademarks, trademark applications, domain names, trade secrets and Confidential Information (as defined below).

6.2. Customer’s Ownership. Customer owns and shall retain all right title and interest in and to the Content (as defined below) which is (i) provided by Customer to Caregraphy for the purpose of the provision of the Service; (ii) created by Customer using the Service; and/or (iii) to the extent applicable, created by Caregraphy specifically for Customer under the provision of Professional Services, and which incorporates or is based on Customer’s copyrighted work and/or Customer’s Confidential Information or other Customer Content according to sub-sections (i) and (ii) above (“Customer Content“). Customer Content specifically excludes Content provided by Caregraphy which does not use Customer Content, the Outputs’ “look and feel”, and Caregraphy’s Confidential Information and Intellectual Property.

Content” means content such as text, data, images, photographs, video, audio, and similar types of content used in, or for creating, Outputs.

6.3. Customer hereby grants to Caregraphy a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to use the Customer Content and its affiliates solely for the purpose of providing the Service to Customer pursuant to this Agreement.

7. Warranty

7.1. Representations. Caregraphy represents and warrants to Customer that (i) the Professional Services performed by or on behalf of Caregraphy under this Agreement will be performed in a professional and workmanlike manner and by personnel that has the necessary skills, training, and background to perform such Services.

8. Indemnification by Caregraphy

8.1. Indemnification obligation. Caregraphy will defend Customer from and against any claim by a third party against Customer to the extent the claim is based on an allegation that the Service or the solution provided by it, infringes upon, or misappropriates, any Intellectual Property Rights of a third party (“Infringement Claim“), and shall indemnify Customer against all liabilities, damages, costs (including settlement costs and reasonable solicitors’ fees) awarded by a competent court, arbitrator/s, or in a settlement, as a result of such claim by a third party; provided that (i) Customer has notified Caregraphy promptly in writing of such claim; (ii) Customer has provided Caregraphy with the authority to control and handle the claim including the defence and settlement of such claim; and (iii) Customer provides to Caregraphy all information and assistance (at Caregraphy’s expense) as may be required for that purpose.

8.2. Exclusions. In no event will Caregraphy have any obligation or liability under this Section 8 arising from: (i) use of any Service in a modified form or in combination with materials not furnished by Caregraphy; (ii) any Customer Content; (iii) any failure by Customer to comply with Customer’s responsibilities under this Agreement; and (iv) use by Caregraphy of any equipment provided by Customer and per Customer’s instructions, for the provision of the Professional Services.

9. Customer’s Responsibilities

In addition to any other undertaking or responsibility of Customer as set forth in this Agreement, any applicable Registration Form, hereto or thereto, Customer shall be solely responsible and liable for, and in connection with: (i) the manner in which Customer and the End Users use the Service (ii) Customer Content, including without limitation Customer’s rights to use such Content in connection with the Service; (iii) information, data or other Content provided by End Users; and/or (iv) compliance by Customer with any and all applicable laws and with third parties’ rights in connection with the foregoing.

10. Limitation of Liability

10.1. Limitation on Indirect Liability . TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR (i) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (ii) FOR LOSS OF USE, BUSINESS, REVENUES, OR PROFITS; IN EACH CASE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN IN THE EVENT OF WILFUL MISCONDUCT OR GROSS NEGLIGENCE, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, CAREGRAPHY’S LIABILITY IN CONNECTION WITH ITS IP INDEMNITY OBLIGATIONS UNDER SECTION 9, CUSTOMER’S (A) BREACH OF SECTION 7 (PROPRIETARY RIGHTS) AND (B) INDEMNITY OBLIGATIONS UNDER SECTION 14.4 (EXPORT RESTRICTIONS) OR AS SET FORTH BELOW IN THIS SECTION 10.2, A PARTY’S AGGREGATE LIABILITY UNDER EACH REGISTRATION FORM SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE REGISTRATION FORM, AND A PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY (“LIABILITY CAP”).

11. Term, Termination and Suspension of Service

11.1. Term. This Agreement commences on the Effective Date and will remain in effect, unless otherwise terminated in accordance with the provisions herein.

11.2. Termination. Either Caregraphy or Customer may terminate this Agreement and any Registration Form thereunder, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.

11.3. Effects of Termination. In any event of termination of this Agreement by either Party:

11.3.1. All rights granted hereunder shall immediately expire and any and all use and/or exploitation by Customer and/or on its behalf of the Services, and any part thereof, shall immediately cease and expire.

11.3.2. Caregraphy shall provide Customer access to its account, at no additional fees, for a period of seven (7) days following termination or expiration of the Agreement, so that Customer may export any stored data.

11.4. Suspension of Service. Caregraphy reserves the right to monitor the use of the Service for security and operational purposes. Caregraphy may suspend or otherwise deny Customer’s or any other person’s access to or use of all or any part of the Services for security reasons if Caregraphy believes, in its reasonable discretion, that any third party has gained unauthorised access to any portion of the Subscription Services using any credential issued by Caregraphy to Customer or its End Users.

12. Confidentiality

12.1. For the purpose of this Agreement, “Confidential Information” means any non-public information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), that is designated in writing as confidential or if disclosed orally – is reduced to writing and titled as “confidential” within fifteen (15) days following the disclosure and sharing with the Receiving Party, or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Confidential Information shall include, but is not limited to, technological information such as know-how, software, data, programs, inventions, ideas, processes, formulas, developments, designs, materials, business information such as marketing and selling, budgets, prices and costs, information about the Disclosing Party’s employees, Affiliates, suppliers and customers, and trade secrets. Confidential Information does not include information that is: (i) public knowledge at the time of disclosure or thereafter becomes generally known other than through an act of breach or negligence by the Receiving Party; (ii) already known by the Receiving Party prior to its receipt from the Disclosing Party; (iii) independently developed at any time by the Receiving Party without use of or reference to Confidential Information; (iv) rightfully obtained by the Receiving Party from other unrestricted sources.

12.2. Protection of Confidential Information. All Confidential Information delivered, made available or otherwise acquired pursuant to this Agreement shall (i) not be copied, distributed, disseminated or made available in any way or form by Receiving Party without the prior written consent of the Disclosing Party; (ii) be maintained in confidence using the same degree of care that the Receiving Party takes to protect its own confidential information, but in no event less than reasonable care; (iii) may only be disclosed to those employees, contractors and/or service providers of Receiving Party who have a need to know in connection with purposes consistent with this Agreement, and who are bound by a written obligation of confidentiality no less restrictive as those set forth herein; and (iv) shall not be used by Receiving Party for any purpose, except for the purposes of this Agreement, without the prior written consent of the Disclosing Party. For the avoidance of doubt, Confidential Information including personal information collected through the use of the Services shall be used, collected, retained, processed, and deleted in accordance with the provisions of Section 5 above.

Expiration. The provisions of this Section 12 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years or for seven (7) years following their disclosure, whichever is earlier.

13. Miscellaneous

13.1. Entire Agreement. This Agreement, including all exhibits hereto and all applicable Registration Forms, constitute the entire agreement between Customer and Caregraphy with respect to the subject matter of this Agreement and supersede and replace any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement, including previous non-disclosure agreements between the Parties.

13.2. Governing Law and Jurisdiction. The law that will apply in any dispute or lawsuit arising out of this agreement is the law of England and Wales.

13.3. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties. Except for payment obligations, neither Caregraphy nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action, and Internet disturbance). Except to the extent required by applicable law, there are no third-party beneficiaries under this Agreement.