Terms of Use

THIS IS A LEGALLY BINDING AGREEMENT between JN Billing and Consultancy, Inc, a california company (“JN Billing”), on the one hand, and you and your hospice agency (collectively, the “Agency”), on the other hand. BY CLICKING “I AGREE” OR BY OTHERWISE SIGNING-UP FOR A JNCLOUD.NET ACCOUNT, OR BY ACCESSING OR USING THE Services (AS DEFINED BELOW), THE Agency is ENTERING INTO THIS JNCLOUD.NET EMR SUBSCRIPTION AGREEMENT (this “Agreement”) AND THE Agency AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. PLEASE READ THIS Agreement CAREFULLY, AND DO NOT SIGN-UP FOR AN ACCOUNT OR USE THE Services IF THE Agency IS UNWILLING OR UNABLE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS Agreement. JN Billing and the Agency is collectively referred to as the “Parties.”

RECITALS

WHEREAS

the Agency is a hospice agency licensed to practice hospice care;

WHEREAS

JN Billing has developed and implemented a web-based software application (‘JNCloud.net’) for hospice management and electronic health records, which software application is being licensed by JN Billing pursuant to and in accordance with the terms and conditions of this Agreement as a service to the Agency (the “Services”); and

WHEREAS

JN Biling desires to license use of the Services from JNCloud.net, and JN Billing desires to license use of the Services to the Agency, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE

for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

JNCloud.net SUBSCRIPTION TERMS

If the Agency has purchased a license to or has otherwise subscribed to the Services as indicated in JN Billing applicable records, the Agency hereby agrees to the following terms and conditions:

LICENSE AND USE.

a. License Grant.

JN Billing hereby grants the Agency, upon the terms and conditions contained herein, a limited, non-transferable, non-sublicensable, non-exclusive license for all licensed professionals associated with the Agency, including, without limitation, all physicians, nurses, physician assistants and therapists (collectively, “Licensed Users”) to use the Services, during the Term (as defined in Section 10 below) in accordance with JN Billing then current documentation and only: (i) in the ordinary course of the Agency normal and ordinary internal business, and (ii) in accordance with applicable federal, state, and local laws, rules, and regulations (“Intended Purpose”). The Agency covenants and agrees that the Services shall not be used by any person or entity other than the Licensed Users for the Intended Purpose and shall prevent any subcontractor or agent of the Agency or any other third party from using the Services. The Agency acknowledges that the Services will encompass information about items, devices, products and/or services not owned by JN Billing, but instead provided by a third party or third parties, inclusive of, but not limited to, third-party vendors and manufacturers (“Third Party Services”).

b. License Restrictions.

In furtherance of Section 1(a) hereof, the Agency shall not, and shall not permit any third party (including, but not limited to, affiliates, employees or agents of any third party) to: (i) duplicate, modify, decompile or reverse engineer any of the Services for any reason; or (ii) resell the Services to any unrelated third party. This is a license, not a sale. The Agency shall not, and shall not allow anyone to: (1) circumvent any security feature of the Services; (2) use the Services to provide services (including processing, commercial timesharing, rental, sharing, application service provider, “service office,” or “service bureau” arrangements) to any third party; (3) permit any third party to view, use, access, or copy the Services; or (4) disclose, publish, broadcast, sell, or otherwise redistribute the Services. The Agency shall maintain the confidentiality and security of any password, account, and other identification information provided with respect to the Services and not to provide it to any other person or entity (including, but not limited to affiliates, employees or agents of any third party). The Agency shall be responsible for all use of, and activities that occur under, its password(s), account, and other identification information and for any actions that take place through its access to the Services (whether conducted by The Agency or another). The Agency agrees to use the Services only for the Intended Purpose.

c. Modification.

. JN Billing reserves the right to modify the Services and their respective features and functionality at any time, without notice or warning and without liability. JN Billing shall have the right to add, drop, modify, or replace, all or any part of the Third-Party Services at any time.

d. Reservation of Rights.

JN Billing reserves the right to display the JNCloud.net brand, trademarks, logo, and any image, name, brand or label which JN Billing has rights to, on any and all of the Services. JN Billing reserves all rights not expressly granted to the Agency in this Agreement.

e. Suspension of Access.

JN Billing may, in its sole discretion, suspend The Agency’s access to the Services for any of the following reasons (i) to prevent damages to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) if The Agency breaches any provision set forth in this Agreement; (iv) to otherwise protect JN Billing from potential legal liability; and/or (v) in the event the License Fee (as such term is defined in Section 2(a) hereof) remains unpaid for more than thirty (30) or more days from the date such fee is due to JN Billing from The Agency. JN Billing may, as an accommodation to The Agency, provide The Agency with notice prior to or promptly following any suspension of the Services, but is under no legal obligation to do so. JN Billing will restore access to the Services as soon as the event giving rise to suspension has been resolved.

f. User Compliance

The Agency represents, warrants and covenants that it will cause any and all of its Licensed Users to comply with the terms of this Agreement and shall be primarily responsible for all use of the Services by its Licensed Users and such Licensed Users failure to comply with the terms and conditions of this Agreement.

g. Advertising and Promotions on Services

. JN Billing will have the sole and exclusive right to offer and sell advertising, promotion, merchandising or marketing services of JNCloud.net (including, but not limited to banners, links, marketing services, promotions, product tie-ins, and product or service merchandising) to third parties on or through the Services.

h. Business Associate

In maintaining, using and affording access to the agency Health Information (as defined in Section 11(c)(iii)) in accordance with this Agreement, JN Billing will, in accordance with the requirements of The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as such requirements are informed by the guidance given by the United Stated Department of Health and Human Services (or any office, department or agency operating thereunder, “HHS”):

i. Not use or disclose such information except as permitted or required by this Agreement or as required by law (as such term is defined in 45 CFR §164.103);

ii. Use appropriate safeguards consistent with the requirements of the Security Rule with respect to The Agency’s Health Information to prevent the use or disclosure of such information in a manner inconsistent with the provisions of this Agreement;

iii. Report to The Agency any use or disclosure of The Agency’s Health Information not provided for by this Agreement of which JN Billing becomes aware, including breaches of The Agency’s Health Information that meets the definition of “unsecured protected health information” under HIPAA, in each case as required by §164.410 of HIPAA, and any security incident (as defined by HIPAA) involving The Agency’s Health Information of which we become aware;

iv. In accordance with §§164.502(e)(1)(ii) and 164.308(b)(2) of HIPAA, as applicable, ensure that any subcontractors that create, receive, maintain or transmit The Agency’s Health Information on JN BILLING’s behalf agrees to the same restrictions, conditions, and requirements that apply to JN BILLING with respect to such information (as such requirement is interpreted or applicable in connection with or under HIPAA); and JN BILLING obtains satisfactory assurances (as such term is interpreted or applicable in connection with or under HIPAA) that such subcontractors will appropriately safeguard such information (it being understood, for the avoidance of doubt, that other users of the Services are not our subcontractors);

v. Make available to The Agency, The Agency’s Health Information in furtherance of The Agency’s obligations under §164.524 of the Privacy Rule;

vi. Make available to The Agency, The Agency’s Health Information in furtherance of The Agency’s obligations to amend and incorporate any amendments to such information in accordance with §164.526 of the Privacy Rule;

vii. Maintain and make available The Agency’s Health Information to provide an accounting of disclosures in accordance with §164.528 of the Privacy Rule;

viii. Make our internal practices, books, and records relating to the use and disclosure of Protected Health Information received from, or created or received by JN Billing on The Agency’s behalf, available to the Secretary of HHS for purposes of determining The Agency’s compliance with the Privacy Rule; and

ix. At termination of this Agreement and provided that all fees payable by The Agency to JN Billing have been fully paid, JN Billing will provide the Agency with a copy of the Agency’s Health Information in an electronic form that is accessible through commercially available hardware and software. The Agency may have to purchase such hardware and software from third parties in order to access the Agency’s data, and The Agency may have to configure its systems in order to use The Agency’s data in its practice. Upon termination and provided that all fees payable by The Agency to JN Billing have been fully paid, JN Billing will, if feasible, return or destroy all Protected Health Information received from, or created or received by JN Billing in JNCloud.net on The Agency’s behalf that JN Billing still maintains in any form, and retain no copies of such information; or, if such return or destruction is not feasible (whether for technical, legal, regulatory or operational reasons), extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible.

• LICENSE FEE.

a. Fee. During the Term, The Agency shall timely pay JN Billing when due the provider fee(s) set forth under the Setup Tab in JNCloud.net Home Screen (“License Fee”) for the Services. The License Fee is due and payable on the dates and monthly designated by JN Billing during the Term and shall be charged to The Agency’s: (i) credit card on file with JN BILLING; or (ii) bank account on file with JN BILLING through ACH transfer from such bank account. The Agency hereby authorizes JN BILLING to charge its credit card and/or bank account on file with JN BILLING on the dates and intervals designated by JN BILLING (which period is subject to change at any time at JN BILLING’s option).

b. Taxes. The Agency shall be responsible for and shall pay JN BILLING for any sales, use, import, excise, value added or other taxes or levies associated with this Agreement and the Services, excluding any taxes based on the net income of JN BILLING, unless customer is tax exempt and provides JN BILLING with sufficient documentation evidencing such tax exempt status.

• INTELLECTUAL PROPERTY.

a. IP Ownership.

JN BILLING shall own all rights, title, interest and intellectual property rights in (i) the Services (inclusive of the items, materials and data contained therein), (ii) all materials and technologies used in and/or in connection with the Services, and (iii) any and all materials and technologies provided in JNCloud.net, and/or developed by JN Billing, alone or jointly with others. The Agency shall not use any information or data disclosed by JN BILLING to The Agency in connection with this Agreement to contest the validity of any JN BILLING intellectual property. Any such use of JN BILLING’s information and data shall constitute a material breach of this Agreement.

• SUPPORT AND UPDATES.

a. Support.

In connection with the license granted hereunder, during its then current support hours, JN BILLING shall provide reasonable off-site technical and other support for The Agency and the Licensed Users.

b. Updates

JN BILLING may, from time to time, in its sole discretion, provide Updates to The Agency, such updates may be provided across the platform in the cloud. For purposes of this Agreement, “Updates” means corrections, changes and improvements to the Services that (i) relate to the operating performance of the Services, but do not change the basic function of the Services; (ii) are intended for general commercial use in connection with the Services; and (iii) are provided generally to JN BILLING’s other customers without additional charge. Updates do not necessarily include new releases or versions of the Services for which JN BILLING, in its sole and exclusive discretion, imposes an additional charge. JN BILLING may, however, in its sole and exclusive discretion, provide Updates to The Agency that include new functionality. Any and all Updates are deemed part of the Services and shall be protected and governed by the terms and conditions of this Agreement and subject to the license granted in Section 1.

• CONFIDENTIALITY

a. Confidential Information

The Agency acknowledges and agrees that the Services constitute valuable and confidential proprietary information and intellectual property of JN BILLING, that are protected under civil and criminal law and under the laws of patent, copyright and trade secret, and, except as expressly provided herein, shall not be disclosed in any form by The Agency to any unauthorized third party. Each Party agrees that all information supplied by one Party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation, (i) source code, trade secrets, databases, designs and techniques, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials; and (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). The Services shall be deemed Confidential Information of JN BILLING.

b. Exclusions

Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or nondisclosure agreement, obligation or duty; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party. It will be presumed that any Confidential Information in a Receiving Party’s possession is not within exceptions (b), (c) or (d) above, and the burden will be upon the Receiving Party to prove otherwise by records and documentation.

c. Treatment of Confidential Information

. Each Party recognizes the importance of the other’s Confidential Information. In particular, each Party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 5 and elsewhere in this Agreement. Accordingly, each Party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; and (c) the Receiving Party currently has, and for so long as it possesses Confidential Information of the Disclosing Party, it will maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Confidential Information other than in accordance with this Agreement, including without limitation written instruction to and agreements with employees and agents who are bound by an obligation of confidentiality no less restrictive than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information. The Receiving Party will instruct and require its employees and agents not to disclose Confidential Information to third parties, including without limitation customers, subcontractors or consultants, without the Disclosing Party’s prior written consent; and will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect all proprietary rights in and ownership of its Confidential Information.

d. Non-Exclusive Equitable Remedy

. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies and may seek and obtain injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss or posting of a bond or other security, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 5 will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.

e. NONDISPARAGEMENT

The Agency shall not hereafter disparage and/or portray JN BILLING in a negative light through the verbal and/or written publication of false, negative and/or injurious statements that are derogatory of JN BILLING’s officers, directors, employees, property, business, products and/or services.

• NO WARRANTIES; THIRD PARTY DISCLAIMER

a. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, SUPPORT, DOCUMENTATION, AND ANY OTHER SERVICES, DATA, AND CONTENT (INCLUSIVE OF THIRD-PARTY SERVICES AND ANY AND ALL THIRD-PARTY ITEMS, PRODUCTS, DEVICES AND/OR MATERIALS) PROVIDED BY JN BILLING UNDER THIS AGREEMENT OR AS PART OF THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. JN BILLING DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. THE AGENCY ACKNOWLEDGES AND AGREES THAT (I) JN BILLING SHALL HAVE NO LIABILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF JN BILLING’S SUBCONTRACTORS (AS SUCH TERM IS DEFINED IN SECTION 11(d) HEREOF) IN CONNECTION WITH THE PROVISION OF SERVICES HEREUNDER; AND (II) THE AGENCY’S SOLE REMEDY WITH RESPECT TO THE ACTS OR OMISSIONS OF THE SUBCONTRACTORS SHALL BE DIRECT RECOURSE AND/OR ACTION BY THE AGENCY AGAINST THE APPLICABLE SUBCONTRACTOR. THE AGENCY EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF AND RECEIPT OF THE SERVICES ARE AT THE AGENCY’S SOLE RISK, INCLUDING ERRORS IN INFORMATION, CONTENT, PRICING, AND OTHER OUTPUT FROM THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JN BILLING OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTIES, PRODUCT ENDORSEMENTS OR MEDICAL ADVICE, OR IN ANY WAY INCREASE THE SCOPE OF JN BILLING’S OBLIGATIONS UNDER THIS AGREEMENT. JN BILLING DOES NOT ENDORSE ANY THIRD-PARTY SERVICE CONTAINED WITHIN THE CONTENT OF THE LICENSED SERVICES. THE LISTING OF THIRD-PARTY PRODUCT WITHIN THE SERVICES IN NO WAY CONSTITUTES AN ENDORSEMENT OF SUCH BY JN BILLING, NOR ANY REPRESENTATION OR WARRANTY AS TO THE SAFETY, EFFICACY OR APPROPRIATENESS OF ANY THIRD-PARTY PRODUCT. JN BILLING PROVIDES NO PROFESSIONAL OR MEDICAL ADVICE AS TO ANY PRODUCT, EQUIPMENT, SERVICE OR THIRD-PARTY ITEM OR USE OF ANY PRODUCT, EQUIPMENT OR THIRD-PARTY SERVICE. JN BILLING SHALL HAVE NO LIABILITY OF ANY KIND TO THE AGENCY IN CONNECTION WITH THE AGENCY’S PROCUREMENT OR USE OF ANY EQUIPMENT, PRODUCTS OR THIRD-PARTY ITEM. PURCHASE AND/OR USE OF ANY THIRD-PARTY PRODUCT CITED WITHIN THE SERVICES IS AT THE AGENCY’S SOLE RISK.

b. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET AND TO LINK TO THIRD PARTY WEB SITES. THE AGENCY ACKNOWLEDGES AND AGREES JN BILLING DOES NOT OPERATE OR CONTROL THE INTERNET OR THE THIRD-PARTY WEB SITES AND: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE PRACTICE’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. JN BILLING SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. JN BILLING DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM JN BILLING’S NETWORK AND OTHER PORTIONS OF THE INTERNET, OR THE AVAILABILITY OF OR ACCESS TO THIRD PARTY WEB SITES. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. THE ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT THE AGENCY’S CONNECTIONS TO THE INTERNET, ACCESS TO THIRD PARTY WEB SITES OR PORTIONS THE INTERNET OR WEB SITES, AND THE TRANSMISSION OF DATA. ALTHOUGH JN BILLING WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, JN BILLING CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, JN BILLING DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATING TO SUCH EVENTS.

• PRACTICE INDEMNIFICATION.

a. The Agency shall indemnify, defend and hold JN BILLING and its shareholders, officers, directors, employees, agents and representatives harmless from and against any and all Losses incurred by any of them arising out of, resulting from or related to any or all of the following: (a) The Agency’s use of the Services in excess of the rights granted in this Agreement; (b) The Agency’s material breach of this Agreement; (c) The Agency’s purchase, selection, recommendation or use of any Third Party Service, or use of Third Party Services resulting from use of JN BILLING’s Services; and/or (d) The Agency’s use or reliance upon any information, data and/or materials encompassed within the Services generated or produced from or by JN BILLING’s subscribers.

• LIMITATION OF LIABILITY

a. THE AGENCY AGREES THAT NEITHER JN BILLING, NOR ANY OF ITS OFFICERS, DIRECTORS, AFFILIATES, EMPLOYEES OR AGENTS SHALL IN ANY EVENT BE LIABLE (i) FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES REGARDLESS OF KIND OR TYPE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, DATA, OR GOODWILL, REGARDLESS OF WHETHER JN BILLING KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) FOR ANY DAMAGES WHATSOEVER IN CONNECTION WITH, OR IN ANY WAY RELATED TO, THE SERVICES AND/OR ANY THIRD PARTY SERVICE. THE AGENCY WAIVES ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT IT MAY HAVE AGAINST JN BILLING ARISING OUT OF THIS AGREEMENT AND THE SERVICES.

b. IN ANY EVENT, JN BILLING’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) RELATING IN ANY WAY TO THIS AGREEMENT SHALL NOT EXCEED ONE TIMES THE AMOUNT OF THE LICENSE FEES PAID DURING THE PRECEDING TERM BY THE AGENCY TO JN BILLING.

c. THE AGENCY ACKNOWLEDGES AND AGREES THAT IT SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ITS RELIANCE ON AND USE OF ANY THIRD-PARTY DATA AND FOR ANY LIABILITY OR DAMAGES ARISING THEREFROM. FOR THE PURPOSES OF THIS SECTION 8(c), THIRD PARTY DATA SHALL INCLUDE ALL DATA, INFORMATION AND MATERIALS SAVED IN JNCloud.net BY THE AGENCY, JN BILLING’S CUSTOMERS AND SUBSCRIBERS. THE AGENCY FURTHER AGREES THAT IT WILL HOLD HARMLESS AND FOREVER RELEASE AND DISCHARGE JN BILLING FROM AND AGAINST ANY LIABILITY OR DAMAGES ARISING OUT OF THE AGENCY’S USE OR RELIANCE ON ANY THIRD-PARTY DATA.

d. THE LIMITATION OF LIABILITY AND TYPES OF DAMAGES STATED IN THIS AGREEMENT ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF LAWSUIT OR CLAIM A PARTY MAY BRING, WHETHER IN TORT, CONTRACT OR OTHERWISE. THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES PROVIDED IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL CONTINUE TO APPLY EVEN IF ANY EXCLUSIVE REMEDY HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE.

• INJUNCTIVE RELIEF.

a. The Agency acknowledges that the provisions set forth in Sections 1, 3, 5, 6, 7, 8, 9 and 11 are necessary to protect the business, goodwill, and other proprietary interests of JN BILLING. In the event of any breach or threatened breach of the above cited provisions, The Agency acknowledges JN BILLING shall incur irreparable damage for which there will be no adequate remedy at law. Accordingly, if The Agency or any of its agents or representatives breaches or threatens to breach any of the foregoing provisions, JN BILLING shall be entitled, in addition to and without prejudice to all other rights and remedies available to it, an injunction (without any bond or other security being required therefor) restraining any breach of the foregoing provisions by The Agency or its agents or representatives.

• TERM AND TERMINATION

a. Term

This Agreement shall commence on the Effective Date and continue until terminated in accordance with Section 10(b) hereof (the “Term”). For purposes hereof, the term “Effective Date” shall mean the date the JN BILLING provides Practice with logical access to use the Services by providing log-in credentials to The Agency.

b. Termination

Either Party may terminate this Agreement on written notice to the other Party if the other Party is in material breach of its obligations hereunder and fails to cure the breach within thirty (30) days of such written notice. In addition, either Party may, in its sole discretion, elect to terminate this Agreement on written notice to the other Party upon the bankruptcy or insolvency of the other Party or upon the commencing voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other Party. Notwithstanding the foregoing or any other provision of this Agreement, at any time The Agency may terminate this Agreement for convenience, without cause or liability for such termination, on thirty (30) days prior written notice to JN BILLING.

c. Effect of Termination

The Agency shall be liable for all fees and charges incurred prior to the date of termination and shall not be entitled to a refund of any License Fees paid by The Agency prior to the date of termination. All such fees are non-refundable. Upon termination, The Agency shall immediately return to JN BILLING, at JN BILLING’s expense, the original and all copies of Confidential Information furnished by JN BILLING to The Agency hereunder.

d. Survival

In addition to any provisions of this Agreement which continue by its terms, the provisions of Sections 3, 5, 6, 7, 8, 9 and 11 survive termination of this Agreement for any reason.

• MISCELLANEOUS

a. Independent Contractors.

Each Party hereto is an independent contractor and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between JN BILLING and The Agency, nor shall either Party be authorized to bind the other in any way.

b. Remedies Not Exclusive; No Waiver; Amendments

Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement must be in writing and signed by the party against whom enforcement is sought.

c. De-Identified Information

In consideration of the provision of the Services by JN BILLING, The Agency hereby transfers and assigns to JN BILLING all right, title and interest in and to all De-Identified Information (as defined below) that JN BILLING makes from The Agency’s Information pursuant to Section 11(c)(i). The Agency agrees that JN BILLING may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that The Agency has no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. The Agency acknowledges that the rights conferred by this Section are a principal component of the consideration for the provision of the Services, without which JN BILLING would not enter into this Agreement.

In that regard, The Agency hereby grants to JN BILLING a non-exclusive, royalty-free, fully paid-up, perpetual, irrevocable, worldwide and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, exploit, sell, commercialize, and display any information, material or work product (other than The Agency’s Information that has not been De-Identified) The Agency provides or uploads to JN BILLING’s website or the Services. The Agency agrees that JN BILLING may use, disclose, market, license, and sell such information and works, including derivative products, without restriction. This includes, for example, custom templates that The Agency creates using the Services, and information (other than The Agency’s Information that has not been De-Identified) that The Agency contributes to forums, discussion groups and the like. The Agency may provide content or material to this site by participating in forums, discussion groups and the like, or by using the site to create custom templates and the like. Furthermore, The Agency agrees that JN BILLING may use, disclose, market, license and sell such material or content, and that The Agency has no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof. The Agency warrants and agrees that any material The Agency provides will not infringe or otherwise violate the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law.

i. JN BILLING may De-Identify (as defined below) The Agency’s Information, and use, exploit, license, commercialize, and disclose De-Identified Information for any purpose whatsoever, including as provided by Section 11(c) and Section 11(c)(iii).

ii. Without limiting the provisions of Section 11(c), The Agency agrees that JN BILLING may provide De-Identified Health Information and other information (including The Agency’s Personal Information and information concerning The Agency) to any medical group, independent practice association of physicians, health plan or other organization with which The Agency has a contract to provide medical services, or to whose members or enrollees The Agency provides medical services. Such information may identify The Agency or its members, owners or employees, but will not identify any individual to whom The Agency provides services. Such information may include, without limitation, aggregated data concerning The Agency’s patients, diagnoses, procedures, orders and the like.

iii. For purposes of this Agreement, the following terms shall have the following meanings:

• 1. The term “De-Identified Health Information” means health information that has been de-identified in accordance with the provisions of the Privacy Rule;
• 2. The term, “De-Identified Information” means De-Identified Health Information and De-Identified Personal Information.
• 3. The term “De-Identified Personal Information” means Personal Information from which all identifiers that could reasonably be anticipated to identify an individual by an anticipated recipient – such an individual’s name, contact information, or government identifiers – have been removed.
• 4. The term “De-Identify,” means (i) with respect to Personal Information, to make such information into De-Identified Personal Information, and (ii) with respect to health information, means to make such health information into De-Identified Health Information.
• 5. The term “Personal Information” means information that includes an individual’s name, contact information, government identifiers, or includes identifiers that could reasonably be anticipated to identify an individual personally by an anticipated recipient.
• 6. The term “Practice’s Health Information” means Protected Health Information that The Agency or its Workforce inputs or uploads onto JNCloud.net, or that JN BILLING receives on behalf of The Agency from its patients, authorized service providers, or JN BILLING’s third-party partners pursuant to this Agreement.
• 7. The term “Practice’s Information” means information that The Agency or its Workforce enters or uploads in JNCloud.net, including The Agency’s Personal Information and The Agency’s Health Information.
• 8. The term “Practice’s Personal Information” means Personal Information that The Agency or its Workforce enters or uploads onto JNCloud.net.
• 9. The term “Workforce” means The Agency’s owners, employees, personnel, volunteers, trainees, subcontractors, vendors, and other persons whose conduct, in the performance of work for The Agency, is under the direct control of The Agency, whether or not they are paid by The Agency.

d. Assignment and Sublicense.

Neither Party shall assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided; however, that JN BILLING shall have the ability, without The Agency’s consent, to subcontract or delegate all or part of the Services to subcontractors (collectively, the “Subcontractors”). Furthermore, The Agency acknowledges and agrees that the Services may not be sublicensed or otherwise transferred voluntarily or by operation of law to any third party. Any attempted assignment, license, sublicense or transfer by The Agency, whether voluntary or involuntary, shall be void and shall be grounds for immediate termination of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties hereto.

e. Governing Law and Venue

This Agreement and the rights of the parties hereto shall be governed by the laws of the State of Texas without regard to principles of conflict of laws. In the event of any litigation arising out of, or relating to, this Agreement or the breach thereof, the venue for any such action shall be in the State or Federal courts located in Collin or Denton County, Texas.

f. Severability; Captions

If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto. The captions of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.

g. Force Majeure

Neither Party shall be liable for damage due to any cause beyond its control, including, without limitation, acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, fire, sabotage, war, embargo or acts or omissions of the other Party caused by any of such events.

h. Compliance with Laws

The Agency shall comply with all applicable laws and regulations, including, but not limited to, those laws and regulations governing its use of the Services. JN BILLING shall use reasonable efforts to comply with applicable laws and regulations in its performance of this Agreement and the provision of the Services.

i. Notices

No notice or other communication shall be deemed given unless sent in any of the manners, and to the persons, as specified in this paragraph. All notices and other communications hereunder shall be in writing and shall be deemed given: (a) upon receipt if delivered personally (unless subject to clause (b) or if mailed by registered or certified mail receipt requested, postage prepaid; (c) at noon on the business day after dispatch if sent by a nationally recognized overnight courier, to the address below:

1. If to JN BILLING: JN Billing and Consultancy, Inc 1340 Route 66, Ste 207 Glendora, CA 91740 If to The Agency: To the address provided by The Agency during its initial trial user account registration process, and if no such initial trial user account registration occurred, then The Agency’s address as reflected in JN BILLING’s books and records.

j. Publicity

The Agency acknowledges and agrees JN BILLING may identify The Agency as a client in its client listings, web sites, and other promotional materials. In addition, JN BILLING may issue press releases regarding the parties’ relationship under this Agreement. At JN BILLING’s request, The Agency agrees to provide JN BILLING with a jpeg file containing its corporate name and logo. The Agency hereby given permission and grants JN BILLING the license and right to use the logo for the purposes set forth in this Agreement and in its communications with third parties.

k. Entire Agreement

. This Agreement constitutes the entire agreement between JN BILLING and The Agency pertaining to the subject matter hereof and supersedes all proposals or prior and contemporaneous agreements or understandings of the parties regarding such matter.

l. Authority

The person signing below represents and warrants that he or she has authority to enter into this Agreement on behalf of his or her organization and bind such organization to the terms of this Agreement.