Terms and conditions

Software As A Service Agreement

The following defined terms have the following meanings:

A. AGREEMENT DEFINITIONS

Agreement” means this software as a service agreement, including the Services policies, the Adracare website Terms of Service and any other document referenced or incorporated herein;

Adracare Programs” refers to the software products owned or distributed by Adracare, including applications, video conference and scheduling to connect patients and physicians for non-emergency medical related issues, to which Adracare grants you access as part of the Services, including Program Documentation, and any Updates provided as part of the Services;

Business Day” means any day on which chartered banks are open to the public for the conduct of business in the ordinary course in Toronto, Ontario, but does not include any Saturday, Sunday or any statutory or civic holiday observed by such institutions in Toronto, Ontario;

Effective Date” means the date the Agreement is entered into as set out in an Order Form or, if the Customer is using the Service under a Free Trial, the date the Customer first started using the Services;“Fees” means all fees set out in the applicable Order Form;

Free Trial” means a period of time where a Customer can access and use the Services for free as determined by Adracare. “Order Form” means an order form entered into between Adracare and Customer.

Program Documentation” refers to the program user manuals, on-line help, as well as any other printed materials provided by Adracare as part of the Services; 

Services” consist of system administration, system management, and system monitoring activities that Adracare performs for Adracare Programs, and includes the right to use the Adracare Programs, support and maintenance services for such Adracare Programs, as well as any other services provided by Adracare, as defined in any schedule hereto;

Term” means the term of the Agreement as set out in Section G herein;

Territory” has the meaning as set out in the applicable Order Form or, if the Customer is using the Service under a Free Trial, the Territory indicated by the Customer when first using the Services;

Users” shall mean those individuals authorized by you or on your behalf to use the Services;

User Fee” means the fee payable to Adracare for access and use of the Services by you and the Users as described in the Order Form, unless the Customer is using the Services under a Free Trial, in which case the User Fees shall be waived for the duration of the Free Trial;“you” and “your” refers to the Customer; and

Your Data” refers to the data provided by you that resides in your Services environment.

B. RIGHTS GRANTED

1.
For the duration of the Term, you have the non-exclusive, non-assignable, limited right within the Territory to use the Services solely for your medical practice operations subject to the terms of the Agreement. You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with the Agreement. The Services are provided as described in, and subject to, the Services policies as set out on our website and in the applicable Order Form. 

2. You acknowledge that Adracare has no delivery obligation and will not ship copies of the Adracare Programs to you as part of the Services. You agree that you do not acquire under the Agreement any license to use the Adracare Programs specified in the Agreement in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services thereunder, your right to access or use the Adracare Programs specified herein and the Services shall terminate. 

3. Prior to your Users having access to the Services, you shall undertake and incur the expense for the legal review and amendment of the Adracare website Terms of Service for use with your Users appropriate to your jurisdiction or jurisdictions of operation.

C. OWNERSHIP AND RESTRICTIONS
     
1. You retain all ownership and intellectual property rights in and to Your Data. Adracare or its licensors retain all ownership and intellectual property rights, title and interest in and to the Services and Adracare Programs. Adracare retains all ownership and intellectual property rights, title and interest in and to anything developed and delivered under the Agreement. 

2. Third party technology that may be appropriate or necessary for use with some Adracare Programs is set out in the applicable Order Form, along with whether or not Adracare shall provide it to you and the associated costs. Your right to use such third party technology is governed by the terms of the applicable third party technology license agreement and not under the Agreement.  If Adracare provides any of the third party technology listed in the Order Form to you and the licensing terms are different than those of this Agreement, Adracare shall provide a copy of such additional terms to you.

YOU MAY NOT DO THE FOLLOWING : 
• remove or modify any program markings or any notice of Adracare’s or its licensors’ proprietary rights;
• make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted herein);
• modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Adracare;
• disclose results of any Services or Program benchmark tests without Adracare’s prior written consent; or
• license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Adracare Programs or materials available, to any third party other than, as expressly permitted under the terms of the Agreement. 

4. The rights granted to you under the Agreement are also conditional upon the following:
• the rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the license);
• except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
• you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

 D. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

1. Adracare warrants that the Services shall perform in all material respects in accordance with the Program Documentation and the Services policies referenced herein. If the Services provided to you for any given month during the Term were not performed or did not function as warranted, you must provide written notice to Adracare setting out how they were not performed no later than five (5) Business Days after the last day of that particular month.  If you fail to provide such notice, Adracare is not liable to you in any way, including but not limited to any obligation to pay any fee credit as set out herein. 

2. ADRACARE DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ADRACARE WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT ADRACARE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ADRACARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 

3. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

E. INDEMNIFICATION   

 1. If a third party makes a claim against either you or Adracare (“Recipient” which may refer to you or Adracare depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or other material (“Material”) furnished by either you or Adracare (“Provider” which may refer to you or Adracare depending on which party provided the Material), and used by the Recipient infringes its intellectual property or privacy rights, the Provider, at its sole cost and expense, shall defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by a court or other authorized entity of competent jurisdiction to the third party claiming infringement or violation or the settlement agreed to by the Provider, if the Recipient does the following:

             •   notifies the Provider promptly in writing, not later than thirty (30) days after the Recipient receives notice of the.                   claim (or sooner if required by applicable law);
             •   gives the Provider sole control of the defense and any settlement negotiations; and
             •   gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the                   claim.

2. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid Fees the Recipient may have paid to the other party for such Material. If such return materially affects Adracare’s ability to meet its obligations under the Agreement, then Adracare may, at its option and upon thirty (30) days prior written notice, terminate the Agreement. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in this Agreement, the Provider’s user documentation or Services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement or privacy violation claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. 

3. The Provider will not indemnify the Recipient to the extent that an infringement or privacy violation claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the Service (e.g., a third party Web page accessed via a hyperlink). Adracare will not indemnify you to the extent that an infringement or privacy violation claim is based upon the combination of any Material with any products or services not provided by Adracare. Adracare will not indemnify you for infringement or privacy violation caused by your actions against any third party if the Services as delivered to you and used in accordance with the terms of the Agreement would not otherwise infringe or violate any third party intellectual property or privacy rights. Adracare will not indemnify you for any infringement or privacy violation claim that is based on: (1) a patent that you were made aware of prior to the Effective Date of the Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the Effective Date of the Agreement. This section provides the parties’ hereto exclusive remedy for any infringement or privacy violation claims or damages.

F. MAINTENANCE AND SUPPORT SERVICES

1. Adracare shall provide to the Customer maintenance and support services as further set out in in the Order Form at the service levels as set out in Schedule “A”.  Such maintenance and support services shall include the supply of all available Updates to the Software, together with related Program Documentation.  For greater certainty, an “Update” means enhancements or modifications to the Adracare Programs or Services that Adracare makes available generally to its current licensees, but does not include new versions of the Adracare Programs or Services which, in the opinion of Adracare, provide additional functions and features beyond those found in the version of the Services and Adracare Programs licensed hereunder. 

2. Adracare shall provide software maintenance and Updates to you on an ongoing basis.  Adracare reserves the right at any time and from time to time to modify, update, add to or discontinue, temporarily or permanently, features of the Services, upon providing you with written notice of same and provided that the overall utility and quality of the Services is not diminished.  This includes but is not limited to Adracare’s ability to implement regularly scheduled maintenance updates, fixes and new releases. 

3. In consideration for providing maintenance and support services, the Customer shall pay the maintenance and support services fee (the “User Fee”) and any applicable extra services fees as set out in the applicable Order Form.

G. TERMINATION

1. Services provided under this Agreement shall be provided for the period set out in the applicable Order Form or for the period of the Free Trial as determined by Adracare. unless earlier terminated in accordance with the Agreement. Such initial term of the Services and, if applicable, any renewal periods are collectively defined as the “Term.”  If the parties hereto renew for one or more additional periods, all the terms and conditions of the Agreement shall continue in effect, subject to any permitted amendments incorporated therein.  At the end of the Term, all rights to access or use the Services, including the Adracare Programs, shall end. 

2. Either party hereto may terminate the Agreement at will upon ninety (90) days’ notice. In the event of such termination at will, you must pay within thirty (30) days from the date of termination all amounts remaining unpaid for Services plus related taxes and expenses. 

3. If either party hereto breaches a material term of the Agreement and fails to correct the breach within thirty (30) days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the Agreement at the end of the thirty (30) days’ notice. If Adracare terminates the Agreement as specified in the preceding sentence, you must pay within thirty (30) days from the date of termination all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. 

4. If Adracare ends the Services pursuant to Section G.3., you must pay within thirty (30) days from the date of termination all amounts remaining unpaid for Services plus related taxes and expenses. 

5. The non-breaching party may agree in its sole discretion to extend the thirty (30) day period for so long as the breaching party continues reasonable efforts to cure the breach. 

6. You agree that if you are in default under the Agreement, you may not use the Services. 

7. In addition, Adracare may immediately suspend your password, account, and access to or use of the Services (i) if you fail to pay Adracare as required under the Agreement and do not cure non-payment within the first ten (10) days of the thirty (30) day cure period, or (ii) if you violate any provision within sections B, C, L or P of this Agreement. Adracare may terminate the Services hereunder if any of the foregoing is not cured within thirty (30) days after Adracare’s initial notice thereof. Any suspension by Adracare of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under the Agreement. 

8. At your request, and for a period of up to sixty (60) days after the termination of the Agreement, Adracare may permit you to access the Services solely to the extent necessary for you to retrieve a file of Your Data then in the Services environment. 

9. You agree and acknowledge that Adracare has no obligation to retain Your Data and that Your Data may be irretrievably deleted after sixty (60) days following the termination of the Agreement.  However, if you so request prior to such deadline, Adracare shall provide you a copy of Your Data at the rates specified in the applicable Order Form. 

10. Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement, indemnity, payment, and others which by their nature are intended to survive.

H. FEES AND TAXES

1. You agree to pay for all Services as set forth in the applicable Order Form. All Fees due under the Agreement are non-cancelable and the sums paid non-refundable, except as expressly provided for in the Agreement. 

2. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that you or Adracare must pay arising out of this Agreement or the transactions contemplated by this Agreement, except for taxes based on Adracare’s income. 

3. You shall reimburse Adracare for reasonable expenses related to providing any on-site portion of the Services. 

4. The User Fees and any related expenses shall be due on the 5th Business Day of each calendar month for User Fees owing from the previous calendar month.  The Customer shall remit by wire transfer or other alternative methods as agreed to by Adracare the User Fees reported as due and an invoice will not be required before these Fees are due.  An invoice will be mailed to the Customer for its records only. 

5. Payment over thirty (30) days due shall incur interest at the rate of eighteen percent (18%) per annum and outstanding payment shall be compounded monthly. 

6. In the event of payment pursuant to this section being more than thirty (30) days past due, Adracare may terminate this Agreement immediately. 

7. User Fees payable to Adracare shall become immediately due in the event of a merger, acquisition, or bankruptcy of the Customer. 

8. Adracare or its designated agent shall have the right at all times to examine the books, records, receipts, and any other financial records and reports of the Customer relating to the accounting of the Fees, whether the documents are in paper or digital format.  Adracare shall also have the right to have an independent auditor review the books of the Customer relating to the accounting of the Fees, provided that Adracare or the third party shall only be entitled to conduct an audit or examination twice every calendar year.  The cost of such inspections will be paid by Adracare, except that if an inspection discloses an understatement in any report of two percent (2%) or more, the Customer shall reimburse Adracare for any and all costs and expenses connected with the inspection (including, without limitation, reasonable accounting and legal fees).  If an inspection should reveal that payments have been understated in any report to Adracare then the Customer shall, in addition, immediately pay to Adracare the amount understated upon demand and interest from the date such amount was due until paid, at the rate of five percent (5%) per annum.  If you fail to make said payment, Adracare can terminate your Services and/or the Agreement immediately. You agree that Adracare shall not be responsible for any of your costs incurred in cooperating with the audit. 

9. You agree that you have not relied on the future availability of any Services, Programs or Updates in entering into the payment obligations herein; however, the preceding does not relieve Adracare of its obligation to deliver Services that you have ordered per the terms of the Agreement.

A. NONDISCLOSURE   

1. By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Each party hereto agrees to disclose only information that is required for the performance of obligations under the Agreement. Confidential Information shall be limited to the terms and pricing under the Agreement, Your Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure. 

2. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. 

3. Each party hereto agrees to hold each other’s Confidential Information in confidence for a period of three (3) years from the date of disclosure, with the exception of information which is considered personally identifiable information, which shall be held in confidence for the period of time set out by applicable law. 

4. Each party agrees to disclose the other party’s Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Adracare shall protect the confidentiality of Your Data residing in the Services environment in accordance with the Adracare security practices. 

5. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the confidential information to a governmental entity as required by law.

B. ENTIRE AGREEMENT 

1. You agree that the Agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. 

2. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions shall remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. 

3. From time to time, Adracare may amend the Agreement, including without limitation its website Terms of Service, provided it does not materially change the Services provided under the Agreement. In addition, upon each anniversary of the Effective Date, Adracare may amend the Fees, any third party technology requirements and costs, provided it gives you thirty-five (35) days’ notice of such changes prior to the renewal date.  Otherwise, the Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by both parties hereto.

C. LIMITATION OF LIABILITY

1. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. ADRACARE’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO ADRACARE FOR THE SERVICES UNDER THE AGREEMENT THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST ADRACARE SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

D. EXPORT 

1. Export laws and regulations of Canada and the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) shall be exported, directly or indirectly, in violation of these laws, or shall be used for any purpose prohibited by these laws.

E. OTHER 

 1. Adracare is an independent contractor and the parties hereto agree that no partnership, joint venture, or agency relationship exists between them. 

2. You shall obtain at your sole expense any rights and consents from third parties necessary for Adracare and its subcontractors to perform the Services under the Agreement. 

3. The Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, and you and Adracare agree to submit to the non-exclusive jurisdiction of, and venue in, the courts of Toronto, Ontario in any dispute arising out of or relating to the Agreement. You and Adracare have agreed that this Agreement be drafted in English. Vous et Adracare avez convenu que ce contrat soit rédigé en anglais. 

4. If you have a dispute with Adracare or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you shall promptly send written notice to: Adracare Services Inc., 500 King Street West, 3rd Floor, Toronto, ON M5V 1L9, Attention: General Counsel, Legal Department. Adracare may give notice applicable to Adracare’s software as a service customer base by means of a general notice on the Adracare portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in Adracare’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Adracare’s account information. 

5. You may not assign the Agreement or give or transfer the Agreement or an interest in it to another individual or entity. 

6. Except for actions for nonpayment or breach of Adracare’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two (2) years after the cause of action has accrued. 

7. The Uniform Computer Information Transactions Act does not apply to this Agreement.

F. FORCE MAJEURE

1. Neither party hereto shall be responsible for failure or delay of performance if caused by a Force Majeure meaning an event outside the reasonable control of the obligated party hereunder, including but not limited to: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; or government restrictions (including the denial or cancellation of any export or other license). Both parties hereto shall use reasonable efforts to mitigate the effect of a Force Majeure. If such event continues for more than thirty (30) days, either party may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.

G. YOUR DATA

1. In performing the Services, Adracare shall comply with the Adracare Privacy Policy, which is available at https://www.adracare.com/privacy-statement and incorporated herein by reference. The Adracare Privacy Policy is subject to change at Adracare’s discretion; however, Adracare policy changes will not result in a material reduction in the level of protection provided for Your Data during the period for which Fees for the Services have been paid. Said policy specifies Adracare’s and your respective responsibilities for maintaining the security of Your Data in connection with the Services.  Access to the Services requires a password(s) that you create. It is your sole responsibility to ensure that your password(s) is/are of sufficient strength and is/are changed regularly to prevent unauthorized access. Adracare shall ensure that it secures its end of the connection. You are solely responsible for ensuring that you do not disclose your account access information to third parties; this includes but is not limited to ensuring: (i) that sufficient security software is installed and running on your computers, smartphones, tablets or any other devices you use to access the Services; (ii) that your network firewall is of sufficient quality and that your wireless connection is encrypted to a degree that will prevent third party access; and (iii) that you take and implement such measures as are required by applicable laws to prevent privacy breaches. Failure to secure your own devices and their access to the internet and/or use of public, unsecured networks and/or failure to eliminate malware makes you very vulnerable to privacy breaches, and Adracare can do nothing about this and shall bear no liability whatsoever in the event of such a breach.

2. Adracare reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide except as otherwise expressly agreed to herein. 

3. You agree to provide any notices and obtain any consents to and from end users and any other applicable parties related to your use of the Services and Adracare’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.

H. RESTRICTIONS ON USE OF THE SERVICES 

1. You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. 

2. In addition to any other rights afforded to Adracare under the Agreement, Adracare reserves the right to remove or disable access to any material that violates the foregoing restrictions. Adracare shall have no liability to you in the event that Adracare takes such action. 

3. You agree to defend and fully indemnify Adracare against any claim arising out of a violation of your obligations under this section.

I. SERVICE TOOLS

1. Adracare may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the Services and to help resolve your Adracare Service requests. The tools will not collect, report or store any of Your Data residing in the Service production environment, except as necessary to troubleshoot Service requests or other problems in the Service. Data collected by the tools (excluding production data) may also be used to assist in managing Adracare’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you shall not use or restore the tools from any tape backup at any time following termination of the Agreement.

J. STATISTICAL INFORMATION 

1. Adracare may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your confidential information or include your company’s name. Adracare retains all intellectual property rights in such information. 

K. THIRD PARTY WEB SITES, CONTENT, PRODUCTS AND SERVICES

1. The Services may enable you to add links to Web sites and access to content, products and services of third parties, including Users, advertisers, affiliates and sponsors of such third parties. Adracare is not responsible for any third party Web sites or third party content provided on or through the Services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.

L. CUSTOMER REFERENCE

1. You agree (i) that Adracare may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Adracare on our website for promotional purposes.  Said profile shall not be published by Adracare until approved by you, your approval to not be unreasonably withheld. If your approval is not received within five (5) Business Days of Adracare’s submission for approval, the profile shall be deemed approved.

Schedule “A” 
Maintenance and Support Service Levels


Support:
Adracare shall provide phone, email and chat support to you and your Users regarding how to access and use the Services 24 hours a day 7 days a week. Adracare shall be responsible for first level support. First-level support includes receiving call from end-users, investigating elevated issues by confirming the validity of the problem and seeking known solutions.  If a problem is new and / or personnel from this group cannot determine a solution, the issue will be raised with Adracare’s second-level technical support group. 

Issue Response and Remediation:
Provided you alert Adracare of a problem with the Services, Adracare shall respond and remedy the Service interruption classifications as follows:Issues will be logged by Adracare’s second-level technical support group according to the severity levels defined in the table that follows.  Adracare shall use commercially reasonable efforts to respond an remediate the issue within the timeframes defined for each severity level. 

Severity Level 1:
Response Time: 1 hour at any time

Anticipated Resolution Time: 8 hours

An issue that causes a total system failure or causes defects that cause loss or misrepresentation of data.

Severity Level 2
Response Time: 2 hours during regular business hours

Anticipated Resolution Time: 24 hours

An issue, which potentially hinders clinical use of the product and for which there is no workaround at the application level.

Severity Level 3
Response Time: 4 hours during regular business hours

Anticipated Resolution Time: 14 Days

An issue that does not impact the use of the product or that has an available workaround. Response time is the estimated maximum time between initial Customer call to Adracare technical support group and return call to Customer from Adracare.

Resolution time is the estimated maximum time between initial Customer call to Adracare technical support group and resolution of Customer’s problem in a way that renders Customer’s system operable.  Resolution within the specified time could mean any of the following:

                 • Adracare provides patch or code fix to Customer that addresses the Customer’s problem.   
                 • Adracare provides suitable workaround (e.g., proposes a configuration change or temporary manual process that.                     alleviates Customer’s problem).   
                 • Adracare confirms that a deficiency exists, and informs the Customer that the issue will be reviewed by a specific.                     date for inclusion in a future patch/release.