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LEGWORK

END USER LICENSE AGREEMENT

The Service and accompanying documentation is licensed and not sold. The Service is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Legwork, or its subsidiaries, affiliates, and suppliers, own intellectual property rights in the Service. Your license to use the Service is subject to these rights and to all the terms and conditions of this End User License Agreement and the Terms of Service, if applicable (the “Agreements”).

Section 1.       Acceptance and Changes

1.1       ACCEPTANCE.   YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENTS. BY SELECTING THE “ACCEPT” OPTION AND DOWLOADING THE SERVICE OR BY INSTALLING, USING, OR COPYING THE SERVICE, YOU AGREE TO ALL OF THE TERMS OF THE AGREEMENTS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENTS, YOU MUST SELECT “DECLINE” AND YOU MUST NOT INSTALL, USE, OR COPY THE SERVICE.

1.2       Changes to these terms.   Legwork may revise the terms of this End User License Agreement from time to time. All revised versions shall supersede any and all prior versions. Revised terms shall be effective as of the Effective Date indicated below. Legwork will provide advance notice of any material revisions. Your continued access or use of the Service constitutes your acceptance of any revisions. If you do not agree to any revisions, you must stop using the Service and Legwork is not obligated to provide you with the Service.

1.3       Effective Date.   EFFECTIVE DATE: November 7, 2017

Section 2.       Service.

2.1       Non-exclusive, non-assignable license.   Subject to the terms of the Agreements, Legwork grants you and your users a non-exclusive and non-assignable right to access and use the Service.

2.2       Limitations on use.   The Service shall not be revised, reverse engineered, “hacked” or otherwise modified without Legwork’s express prior written consent, which may be withheld in Legwork’s sole discretion.  You cannot alter, copy, modify, take, sell, reuse, or divulge the Service.  Any modifications to the Service or derivative works on same shall be owned solely by Legwork.  Nothing in this Agreement shall be construed as a grant, transfer or license of any other right, title or interest in or to the Service or any right under any patent, trade secret or other intellectual property rights of Legwork or any other party.  You acknowledge and agree that Legwork owns all right, title and interest in and to the Service (including, without limitation, all software and technology underlying any such product, service, and/or information originated by, owned or duly licensed by Legwork) and all related intellectual and proprietary rights of any kind deriving from or proceeding thereunder anywhere in the world.  You agree that you will not use the Service, or the results created thereby, or disseminate or distribute any of this information, except as may be expressly permitted by the Agreements.

Section 3.       Using the Service.

3.1       Application Guidelines.   You shall use the Services solely for your internal business purposes and shall not: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send any material which is infringing, obscene, threatening, libelous, unlawful, tortious, harmful to children, violates third party rights, or which Legwork otherwise reasonably deems objectionable; (c) send material with any virus, worm, or other harmful computer code; (d) interfere with or disrupt the integrity or performance of the Service in whole or in part; or (e) attempt to gain unauthorized access to the Service or any other system or network. You may not use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, and may not disclose any information related to such prohibited activities.

3.2       Default Procedures.   Licensee acknowledges and agrees that Legwork may not be able to fulfill all requests sent to its servers at any given time due to circumstances beyond its control, including Internet traffic, ISP malfunctions, human error, and other similar causes. Legwork will make reasonable efforts to implement default procedures for interruptions in use of the Service. Under no circumstances does Legwork warrant or guarantee any measure of successful operation of the Service to the Licensee.

3.3       Licensee Support of Functionality.    All hardware and software necessary for Licensee’s implementation of the Agreements shall be Licensee’s sole responsibility. Licensee, at its sole cost and expense, shall be solely responsible for providing, maintaining and ensuring that all hardware, software, electrical, and other physical requirements for Licensee’s access and use of the service are compatible with Legwork’s requests and standard operating parameters. 

3.4       Network Traffic Interruptions.    Licensee understands, acknowledges and agrees that Legwork’s services rendered hereunder may be inaccessible, unavailable or inoperable at any time for any reason, including, without limitation:  (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Legwork or third parties may undertake with or without notice from time to time; or (iii) causes beyond the reasonable control of Legwork or which are not reasonably foreseeable by Legwork, including, without limitation, acts of God, earthquake, flood, fire, weather events, labor disputes or disturbances, material shortages or rationing, riots, acts of war or terrorism, criminal activity, governmental acts, including those under color of laws, communication or utility failures, other unusual or catastrophic casualties, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of sites or interfaces, internet congestion, or other failures.  While Legwork will make all commercially reasonable efforts to provide the Service on a continuous basis, Licensee acknowledges and agrees that Legwork has no control over the availability of any internet-related services on a continuous or uninterrupted basis, and that occasional interruptions of internet-related services may occur.  Licensee also understands and agrees that Legwork is not responsible for the functionality of any third party website or interface.  THE PERFORMANCE OF THIS AGREEMENT BY LEGWORK IS EXPRESSLY SUBJECT TO LEGWORK HARDWARE, SOFTWARE, CODE AND BANDWIDTH TRAFFIC LIMITATIONS.  Failures or delays in performance by Legwork due to technical difficulties not in the control of Legwork or not due to a direct act or omission of Legwork do not represent a breach or default of this Agreement.

3.5       Third-Parties.   The Service may facilitate interaction between and among you, your users, and/or your clients and third parties. Legwork is not responsible for any exchange of data or other interaction or transaction between or among you, your users, your clients and third parties.

3.6       Links.   The Service may contain links to other websites or resources. You acknowledge and agree that Legwork is not responsible or liable for (a) the availability or accuracy of such sites or resources; or (b) the content, advertising, or products on or available from such website or resources. The inclusion of any link on the Service does not imply that Legwork endorses the linked website. You use the links at your own risk.

3.7       Advertising.    Legwork reserves the right to advertise (through banner advertisements, merchandizing, search listings, executable programs, and the like) Legwork and third party products and services within the Service. Such advertising shall not unreasonably interfere with the use of the Service and its features. Any and all advertising revenue generated by Legwork through the Service will be retained by Legwork.

3.8       Content.   Legwork is a distributor (and not a publisher) of content supplied by third parties and users of the Service. Legwork has no editorial control over such content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of Legwork. Legwork neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Service by anyone other than authorized Legwork employees acting in their official capacities. You understand and acknowledge that Legwork does not monitor content for accuracy or reliability.

3.9       Privacy Policy.   Legwork’s Privacy Policy: http://legworkprm.com/privacy-policy is incorporated herein by reference. Please review it because it applies to your use of the Service. Legwork’s privacy policy may be updated from time-to-time, any such updates shall automatically be incorporated herein upon publication.

3.10     Right to communicate to patients on your behalf.   You grant Legwork representatives the right to communicate with your patients for the purposes of appointment related communications, relationship enhancement and marketing related messaging, through email, SMS messages, postal mail, social posts, blog posts, phone calls and websites.

3.11     Referral rewards.   The Service is capable of sending gift cards, gifts, thank you cards and many other types of items on behalf of the patient. Legwork provides this service to many types of industries and business types to be used at your patient’s discretion. Gifts and rewards can be fulfilled by manually generating them through the Service interface or automatically by configuring the Service to do so. Legwork representatives will, at your request, configure the Service to automatically fulfill rewards to patients. Legwork makes no claim to understand the laws that may govern your business or practice. It is your sole responsibility to use the Service only in such manner that does not violate any applicable laws.

Section 4.       Responsibilities.

4.1       Support Incident.   A support incident is any specific request for assistance submitted by you to Legwork’s support team. An incident may be submitted via phone, client access portal, or e-mail. Legwork provides unlimited support incidents for all patients.

4.2       Response.   Based on the nature and complexity of your incident, the first responses Legwork provides may differ. In all cases you will receive a confirmation from our support team of the receipt and initial review of your incident. In many cases, a solution with supporting information will be offered. If, after Legwork’s initial review, your incident requires further information or research for Legwork to continue, Legwork will request from you any additional details required to resolve your incident, and may provide further information regarding next steps for further research, troubleshooting, or escalation by our Product Support team.

4.3       Your Responsibilities.   In addition to your other obligations, you are solely responsible for: (a) determining whether the Service shall meet your needs; (b) issuing appropriate passwords for users or asking us to do so on your behalf; (c) selecting and training appropriate individuals to use the Service; (d) all activities that occur under user accounts; (e) using commercially reasonable efforts to prevent unauthorized access to or use of the Service or any content in whole or in part; (f) notifying us promptly of any actual or suspected unauthorized access/use; (g) abiding by all applicable local, state, national, and foreign laws, treaties and regulations, including those related to data privacy, communications, and the transmission of technical or personal data; (h) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Patient Data; (i) your users completing all required training; (j) complying with our client services policies, as published from time-to-time, to obtain support and other services under this Agreement; (k) not impersonating another user or providing false identity information for any purpose; (l) providing, installing, and maintaining computer equipment and communications tools and access as Legwork may specify from time to time; and (m) establishing adequate backup plans to your own equipment and data if there is any Service or other malfunction.

4.4       Maintenance of Patient Data.   Notwithstanding anything in the Agreements or otherwise, Legwork shall have no obligation to maintain or provide any Patient Data more than 30 days after termination or expiration of the Agreements for any reason. After 30 days following termination or expiration of the Agreements, Legwork may delete all Patient Data in its possession or under its control.

4.5       Non-Disclosure of Confidential Information.   Neither party shall at any time (a) misappropriate, disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to legal counsel, employees and agents who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or (b) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party and in accordance with this Agreement.  The receiving party agrees to take all measures to protect the secrecy, and avoid misappropriation, disclosure and unauthorized use, of the Confidential Information.  The receiving party may disclose Confidential Information if required by law, provided that the receiving party gives the disclosing party prompt written notice prior to such disclosure and the receiving party provides assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legally required disclosure.  All Confidential Information shall remain the disclosing party’s personal tangible or intangible proprietary and confidential trade property, and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon the disclosing party’s request, and also, upon termination of this Agreement.  The receiving party may not issue any press release or other public statement regarding Confidential Information without the prior written consent of an authorized person at the disclosing party. 

Section 5. Proprietary Rights.

5.1       Reservation of Rights.   Legwork owns all right, title, and interest, including all related IPRs, in and to the Legwork technology, the content, the Service, and any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by you or anyone else relating to any of the foregoing; except Patient Data. Except for the express license granted herein, Legwork grants no license or other right to you or any user; all such other rights are expressly reserved to Legwork. The Legwork name and logo are registered trademarks of Legwork. The product names associated with the Service are trademarks of Legwork, and you have no right or license to use them without our written permission. You shall not challenge any ownership or other right of ours with respect to the Service or any IPR.

5.2       Restrictions.   Other than as expressly set forth herein, you shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service in any way; (b) modify, copy or create derivative works based on the Service in whole or in part; (c) create Internet “links” to or from the Service, or “frame” or “mirror” any Service content, other than on your own intranets or otherwise for your own internal business purposes with the exception of extensions developed with the published Legwork API, but always subject to its terms and conditions; or (d) disassemble, reverse engineer, or decompile the Service, or access to: (i) build a competitive product or service, (ii) build a product or service using any similar idea, feature, function, or graphic of the Service, or (iii) copy any idea, feature, function, or graphic of the Service. 

You should assume that everything you see or read on the Service that was not furnished by you (such as images, photographs, illustrations, text and other materials) is copyrighted unless otherwise noted. You may not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any of the Content in any way for any public or commercial purpose unless you have the necessary rights to do so as specified herein or you have obtained the prior written consent of Legwork. You may not use any Service content on any other website or in a networked computer environment for any purpose except as permitted in writing by Legwork.

5.3       Patient Data.   You own all Patient Data. However, you agree that Legwork may access user accounts, including Patient Data, to respond to service or technical problems or at your request or to compile and disclose anonymous user statistics in aggregate, in compliance with our Privacy Policy. You, not Legwork, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Patient Data.

5.4       Suggestions.   You grant Legwork a paid-up, worldwide, irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your users during the term of this Agreement relating to the operation of the Service. Without limiting the generality of the foregoing, if you would like to provide suggestions about the Services, you can use the Legwork Community component of the Service for this purpose.

Section 6.       HIPAA Obligations.

6.1       Permitted Uses and Disclosures of Protected Health Information.   Legwork provides services for you that may involve the use and disclosure of Protected Health Information (“PHI”). Except as otherwise specified herein, Legwork may make any and all uses of PHI necessary to perform its obligations and exercise its legal rights under the Agreements. All other uses not authorized by the Agreements are prohibited. Legwork may use or disclose PHI to the full extent permitted by the HIPAA Rules.

6.2       Legwork’s obligations as a Business Associate.   To the extent Legwork is determined to be a “Business Associate” as defined by HIPAA Rules, it agrees to:

6.2.1    Not use or disclose PHI other than as permitted or required by the agreement or required by law;

6.2.2    Use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by the Agreement;

6.2.3    Report to you any use or disclosure of PHI not provided for by the Agreement of which it becomes aware;

6.2.4    Ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of Legwork agree to the same restrictions, conditions, and requirements that apply to Legwork with respect to such information;

6.2.5    Make available PHI in a designated record set to you as necessary to satisfy your obligations under HIPAA Rules;

6.2.6    Make any amendment(s) to PHI in a designated record set if directed by you;

6.2.7    Maintain and make available to you the information required to provide an accounting of disclosures; and

6.2.8    Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

6.3       Your Obligations as a Covered Entity.   You acknowledge that you are a “covered entity” within the HIPAA Rules. You also acknowledge that Legwork is relying on your promises as set forth in this section. Thus, you agree to:

6.3.1    Obtain any and all consents and permissions required for Legwork to use or disclose any PHI consistent with the terms of the Agreements, including any consents and permissions necessary to use or disclose PHI within the ordinary operation of the Service;

6.3.2    Notify Legwork of any restriction on the use or disclosure of PHI that you have agreed to or are required to abide by, to the extent that such restriction may affect Legwork’s use or disclosure of PHI;

6.3.3    Notify Legwork of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect Legwork’s use or disclosure of PHI;

6.3.4    Notify Legwork of any limitation(s) in your notice of privacy practices, to the extent that such limitation may affect Legwork’s use or disclosure of PHI;

6.3.5    That you shall not request Legwork to use or disclose PHI in any manner that would not be permissible under HIPAA Rules if done by you.

6.4       Legwork’s Retention of PHI After Termination.   Upon termination of one or more of the Agreements for any reason, Legwork, with respect to PHI received from you, shall:

6.4.1    Retain only that protected health information which is necessary for Legwork to continue its proper management and administration or to carry out its legal responsibilities;

6.4.2    Return to you or destroy the remaining PHI that Legwork still maintains in any form;

6.4.3    Continue to use appropriate safeguards to prevent the use or disclosure of the electronic PHI, other than as provided for in this Section, for as long as Legwork retains the PHI;

6.4.4    Not use or disclose the PHI retained by Legwork other than for the purposes for which such PHI was retained and subject to the conditions on use and disclosure set forth in this agreement; and

6.4.5    Return to you the PHI retained by Legwork when it is no longer needed by Legwork for its management and administration or to carry out its legal responsibilities.

Section 7.       TCPA Obligations

7.1       The Telephone Consumer Protection Act (TCPA) is a federal law that protects consumer from unwanted solicitation by telephone, fax, and text message. The TCPA prohibits using an “Automatic Telephone Dialing System” to contact a consumer without consent.

7.2       Your Obligations Under TCPA.   You are subject to the restrictions of TCPA when you contact your patients. As such, you agree to:

7.2.1    Before sending any marketing-related message, obtain express written consent from each patient receiving the marketing message that the patient consents to receive text messages related to your goods and services from an automated system.

7.2.2    Honor patient requests to opt-out of future telephone, fax, and text message communications. Legwork software provides you the ability to honor these requests.

7.2.3    Not send any messages beyond the scope of the consent you receive from your patients. Messages unrelated to your products and services will exceed this scope and potentially subject you to liability under TCPA or other relevant laws.

7.2.4    State in your privacy policy that you may be contacting patients from any number you have on file and obtain written acknowledgement from each patient that they have read and agreed to your privacy policy.

7.3       Informational messages.   While you are subject to TCPA whenever you use Legwork’s software to contact your patients, when you use the software to contact patients with informational messages (such as appointment reminders), consent to receive such messages does not need to be in writing. It may be verbal, electronic, or written. However, it is strongly recommended that you obtain consent in either electronic or written form before contacting patients. In the unlikely event that your patient brings suit alleging a violation of TCPA, it will be your responsibility to prove that your patient consented to informational messages.

Section 8.       CAN-SPAM Obligations

8.1       The CAN-SPAM act sets out the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and provides penalties for violations.

8.2       Your Obligations Under CAN-SPAM. You are subject to the restrictions of CAN-SPAM when you contact patients using email to promote a product or service. As such, if you use Legwork software to distribute a marketing message, you agree to follow the rules of CAN-SPAM, including without limitation, to:

8.2.1    Not use false or misleading header information in emails.

8.2.2    Not use deceptive subject lines in emails.

8.2.3    Identify the email message as an advertisement.

8.2.4    Include your valid physical postal address in all marketing emails.

8.2.5    Tell recipients how to opt out of receiving future email from you.

8.2.6    Honor opt-out requests promptly.

8.2.7    Monitor what others are doing on your behalf. If you have another company handling your email marketing, you are still liable for what they send out on your behalf.

Section 9.       Warranties and Disclaimer.

9.1       Your representations, warranties, and covenants.   You represent and warrant that (1) you will not infringe any existing copyright, trademark, patent, trade secret, intellectual property or other proprietary right of Legwork, (2) you will not breach any duty toward or rights of any patient including, without limitation, obligations regarding consumer protection, confidentiality or rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, tort, breach of contract, injury, damage or harm of any kind to any patient; (3) you will not send anything to patients that is false, deceptive or misleading; and (4) will remain free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, “spyware” and other computer programming routines or protocols that may potentially damage, interfere with, intercept, misappropriate or expropriate any Service, hardware, software, equipment system, data or personal information of Legwork or any patient. 

You also represent, warrant and covenant that: (5) you have the power and authority to enter into and perform your obligations under the Agreements; (6) you shall not be in violation of any obligation, contract or agreement or laws by entering into the Agreements, by performing your obligations hereunder or by authorizing and permitting Legwork to perform the services rendered hereunder; (7) you shall comply with all of the terms and conditions of the Agreements, as amended from time to time; (8) all information provided by you to Legwork is truthful, accurate and complete in all material respects; (9) Legwork is hereby authorized by you to perform all the services described hereunder with respect to you; and (10) you shall maintain insurance with respect to these services and shall name Legwork as an additional insured under such insurance policy.

9.2       Legwork’s representations, warranties, and covenants.   Legwork represents and warrants as follows:  (1) it is duly authorized by all necessary corporate action to execute, deliver and perform its obligations under this Agreement; (2)  it has all necessary certificates and approvals to operate and provide you the Service and perform its obligations under this Agreement; (3) it is and will remain in compliance with and not violate any laws; (4) it does not and will not infringe any existing copyright, trademark, patent, trade secret, intellectual property or other proprietary right of any third party; and (5)  it will use best efforts to ensure that the Service will remain free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, “spyware” and other computer programming routines or protocols that may potentially damage, interfere with, intercept, misappropriate or expropriate any of your hardware, software, equipment system, data or personal information.

9.3       Warranty Disclaimer.   LEGWORK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LEGWORK’S SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.  YOU AGREE THAT YOUR USE OF THE TECHNOLOGY IS AT YOUR SOLE RISK AND EXPENSE.

9.4       Limitation of Liability.   UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL LEGWORK BE LIABLE TO YOU OR YOUR PATIENTS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF LEGWORK HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL LEGWORK BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.

 Section 10. Indemnification.

10.1     Indemnification by Legwork.   Legwork shall defend, indemnify, and hold you harmless against all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs, whether incurred as the result of a third party claim or a claim to enforce this provision) (collectively, “Losses”) made or brought against you by a third party alleging that your use of the Service in accordance with the terms of the Agreement infringes a U.S. patent, copyright or trademark, except that Legwork shall have no such obligation for any infringement claim to the extent caused by any combination of the Service with any product, service, hardware, or business process not supplied by Legwork; provided that: (a) you give Legwork prompt written notice of such third party claim; (b) Legwork has sole control of the defense and settlement of such third party claim; (c) you provide Legwork, at Legwork’s expense, all reasonable information and assistance in connection with such third party claim; and (d) Legwork may not settle such third party claim unless such third party unconditionally releases you from all liability. This Section shall be your exclusive remedy and Legwork’s sole liability if there is any claim that the Service infringes or violates any intellectual property rights.

10.2     Indemnification by You.   You shall indemnify, defend and hold harmless Legwork from and against all claims, losses, costs, damages, and expenses (including reasonable attorneys fees and costs) which result from or arise in connection with any act, negligence or omission committed, including any breach of contract claims between you and your patients, or violations of HIPAA Rules, including your failure to obtain the necessary consent from your patients required for the Service to use health information protected under HIPAA Rules.

This Section 8.2 shall survive termination of this Agreement.

Section 11.     Limitation of Liability.

11.1     Limitation of Liability.           Other than Legwork’s breach of its indemnification obligation under Section 8.1, in no event shall (a) Legwork’s aggregate liability to you exceed the amounts actually paid by you in the 12-month period immediately preceding the event giving rise to your claim; and (b) Legwork be liable to you for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use, or other economic advantage) arising out of or in any way connected with the Service, content, or any interruption, inaccuracy, error or omission, regardless of cause, even if Legwork has been previously advised of the possibility of such damages, and regardless of the basis of any claim, e.g., warranty, tort, contract, or strict liability.

11.2     Acknowledgement. You acknowledge that: (a) this Section 9 is reasonable given the cost of the Service; (b) this Section 9 applies even if a remedy fails of its essential purpose; (c) all your claims are subject to the damages limitation in this Section 9; and (d) the 12-month calculation shall be made only once regardless of the number of claims arising out of or related to this Agreement and regardless whether they exceed the amounts actually paid by and due from you hereunder in the 12 months preceding your first claim.

Section 12. Termination.    Each of the parties hereto has the right to terminate this Agreement, with or without cause, upon 30 days written notice to the other party.  Legwork may also suspend your use of the Service immediately upon notice for cause if there is reason to believe you have violated any term of the Agreements.  After termination Licensee shall pay Legwork any amounts due at the time of termination in accordance with the terms and conditions of the Agreements, including, but not limited to, any final usage fees.  

Section 13. General Provisions.

13.1     Relationship.   This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

13.2     Assignment.   Neither this Agreement nor any part hereof may be assigned by you without the prior written consent of Legwork.  Any assignment, transfer or delegation of duties hereunder by you without Legwork’s prior written consent shall be void and of no force and effect.  Legwork will make reasonable efforts to accommodate a proposed assignment in the event of a merger, acquisition or other form of reorganization, only if the proposed assignee is financially and otherwise capable of discharging Licensee’s duties and obligations hereunder, including without limitation in accordance with applicable laws, but may nevertheless withhold its consent at its sole discretion.  Either Legwork or any of its subsequent assignees may assign this Agreement, in whole or in part, including any applicable rights or delegation of duties to any party.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 

13.3     Notice.   Legwork may notify you by a general notice on the Service, by electronic mail to any e-mail address it has on record or by pre-paid first class mail or overnight courier to your address in Legwork’s records. Notice shall be deemed to have been given within 3 business days after mailing or 12 hours after sending an email or posting a change on the Service. You shall notify Legwork (and such notice shall be deemed given when received) of any matter regarding this Agreement only by a written letter (a) sent by confirmed facsimile, (b) delivered by prepaid nationally recognized overnight delivery courier or by first class, or (c) by e-mail to
orderproc@legwork.com.

13.4     No Waiver/Cumulative Remedies.   No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof.  No waiver shall be binding unless executed in writing by the party to be bound thereby. Except as expressly provided herein, a party’s rights and remedies shall be cumulative, and none of them shall be in limitation of any other right or remedy in law or equity.

13.5     Governing Law.   This End User Licensing Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard or reference to its choice or conflict of laws provisions.  Each party hereto agrees that all disputes regarding this Agreement and matters connected with its performance shall be subject to the exclusive jurisdiction of alternative dispute resolution forums or the courts of the State of Washington located in Chelan County, Washington.

13.6     Arbitration.   The parties agree to attempt to resolve any disputes relating to this Agreement by negotiation and/or with a mutually agreed-upon mediator.  However, if these attempts are unsuccessful, upon demand by either party, all claims between the parties shall be referred for binding arbitration in accordance with the Washington Uniform Arbitration Act (RCW 7.04A et seq.).  There shall be one arbitrator, whose decision shall be final, and binding, and judgment may be entered thereon.  If the parties cannot agree on the arbitrator, the arbitrator shall be appointed by the presiding judge of the Chelan County Superior Court. The arbitrator is authorized to restrict and/or limit discovery in the arbitrator’s discretion, to that discovery reasonable under the circumstances considering the complexity of the matter and the amount in controversy.  The substantially prevailing party, in any arbitration or other action, shall be entitled to collect all fees and costs incurred in connection with such action, including attorneys’ fees, which amount shall be included in any award given.  The arbitration requirements of this section shall not be required for claims related to Legwork’s intellectual property (e.g. trademarks, trade dress, domain names, trade secrets, copyrights or patents).

13.7     Entire Agreement.   Legwork’s provision of the Services is expressly conditioned upon your assent to all terms of the Agreements. Accordingly, no text or other information set forth on any of your purchase orders, preprinted forms, or other documents shall add to or vary any term of the Agreements and Legwork expressly rejects any such additional or different terms. If any term of the Agreements is held to be invalid or unenforceable, such term shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable term, with all other terms remaining in full force and effect. The Agreements comprise the entire agreement between you and us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between your and us regarding the Service and the Agreements. Should there be a difference between the Terms of Use and the End User License Agreement, the Terms of Service shall take precedence; provided that the parties may agree in writing that a provision of the End User License Agreement shall supersede a provision of the Terms of Service by expressly referencing in the End User Licensing Agreement in the Terms of Service.

13.8     Severability.   If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to this Agreement and has like economic effect.

13.9     Attorneys Fees.   If any action in law or in equity is necessary to enforce this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs and expenses in addition to any other relief to which such party may be entitled.

Section 14.     Definitions

14.1     Agreements.   “Agreements” means this End User License Agreement as well as the Terms of Service Agreement if applicable. By downloading, using, copying, or changing the Service, you accept all terms of the Agreements.

14.2     Confidential Information.   “Confidential Information” means any (1) any confidential and proprietary information or trade secret of a party, whether or not related to this Agreement, Legwork, the Service, you, or (2) any information disclosed by a party to the other party, either directly or indirectly, in writing, orally or by receipt and review of same authorized by this Agreement, including without limitation any and all technology used to implement the Service, other than information that the receiving party can establish:  (i) was publicly known and/or generally available in the public domain prior to the time of disclosure to the receiving party; (ii) enters the public domain after disclosure to the receiving party, other than through the receiving party’s action or inaction; or (iii) is in the receiving party’s possession, without confidentiality restrictions, prior to the time of disclosure as shown the receiving party’s files and records.

14.3     HIPAA Rules.   “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

14.4     Legwork.   “Legwork” shall mean Brands On Fire, LLC, d.b.a. Legwork and all of its subsidiaries, affiliates, and suppliers.

14.5     Patient Data.   “Patient Data” means any data, information, or material you or any user provides or submits through the Service.

12.6     Service.   The “Service” shall mean all services and products that Legwork provides including the Legwork PRM software, website services, search engine optimization, as well as Legwork representatives who perform tasks and services relating to Legwork products or on behalf of the patient.

14.7     User.   “User” shall mean any natural person that is authorized by you to use the Service who is (a) your employee, or (b) your consultant or contractor, but only if such consultant or contractor requires access to the Service to provide goods or services to you and who may under no circumstances be a direct competitor of Legwork or may be accessing the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

14.8     You or Your.   “You or your” shall mean the licensee of the Service governed by this agreement. By selecting the “accept” option or by installing, using or copying the Service you agree to be bound as a licensee under all terms of the Agreements.

14.9     The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, and Use.