BREEZYNOTES END USER AGREEMENT AND BUSINESS ASSOCIATE AGREEMENT

THIS END USER AGREEMENT (“Agreement”) is made between BreezyNotes EHR L.L.C., a Minnesota limited liability company (“BreezyNotes EHR,” “we” or “us”) and you. BY ACCESSING THE SOFTWARE SERVICE (AS DEFINED IN SECTION 1 BELOW), YOU ARE ENTERING INTO A CONTRACT AND AGREE TO BE BOUND BY ITS TERMS.

1. SOFTWARE SERVICE. We offer a Software Service for the storage, access and management of electronic health records, which includes electronic medical records services, client scheduling services, practice management services, client and insurance billing services, and client progress tracking and management (the “Software Service”).
2. RIGHT TO USE THE SOFTWARE SERVICE. Upon payment of the Price (as described in Section 5), we grant you, and the number of Authorized Users identified in your Order Form, a non-exclusive, personal, non-transferable, limited right to access and use the Software Service during the term to store, retrieve, update, share and process Personal Health Information (“PHI” as described in Section 7) during the Term.
3. ACCESSING THE SOFTWARE SERVICE. To access the Software Service, you must create an account by providing us information such as your name, contact information, status as a health care provider, and health system affiliation (“Personal Information”). By accessing the Service, you represent to us that you are a properly credentialed healthcare provider.
4. PROHIBITED USES OF THE SOFTWARE SERVICE. You may not use the Software Service to:
   • infringe any third party’s privacy or Intellectual Property Rights (as defined in Section 12(e));
   • send or store obscene, harassing, threatening, offensive, obscene, or otherwise unlawful information;
   • attempt to or gain unauthorized access to any portion of the Software Service;
   • circumvent or reverse engineer any content, features or functionality of the Software Service;
   • permit unauthorized persons to access or use the Software Service;
   • create a competitive Software Service;
   • use the Software Service other than as permitted in Section 2 of this Agreement; or
   • use the Software Service to perpetuate a crime or fraud or to violate any federal, state or local laws or regulations.
5. FEES AND PRICING.
   • Fees. Fees are calculated based on the number of signed, billable client notes including, but not limited to, Diagnostic Assessments, Progress Notes and Custom Notes. During the Term, you will pay BREEZYNOTES EHR a base rate plus fee for each signed, Diagnostic Assessment, Progress Note or Custom Note entered in the previous month, as well as any charges for additional services at the rates indicated on the BREEZYNOTES EHR website at https://breezynotes.com/pricing (“Fees”). BREEZYNOTES EHR may adjust the Fees from time to time. BREEZYNOTES EHR will notify you of the Fees before you incur them, and you may also obtain BREEZYNOTES EHR’s current Fees by calling/emailing 612-568-1124/info@breezyehr.com.
   • Taxes. You are responsible to pay those sales and use taxes payable to any federal, state, or local taxing authority resulting from your use of the Software Service, excluding income taxes on BREEZYNOTES EHR’s profits derived from providing the Software Service (“Taxes”).
   • Invoicing and Payment. BREEZYNOTES EHR will issue to you an invoice reflecting the Fees and Taxes (collectively, the “Price”) due and payable on the first of every month and charge the credit card on file for the amount due on the fifth of every month. In the event we are unable to charge the credit card on file, you will have thirty (30) days from the date of the invoice to pay the invoice amount. You agree to pay the Price to BREEZYNOTES EHR using the online payment services operated by ChargeBee and Stripe.
   • Late Charges; Collection Costs. Any portion of the Price that is not paid within thirty (30) days of the due date is subject to a late charge of five percent (5%) of the amount outstanding, and interest thereafter shall accrue at the rate of two percent (2%) per month on the outstanding balance (or the highest amount permitted by law, whichever is lower). BREEZYNOTES EHR reserves the right to terminate the Software Service without notice to you for failure to pay any outstanding balance within thirty (30) days of the due date. If the Software Service is terminated for failure to pay Fees or Taxes, BREEZYNOTES EHR will charge you a reconnection fee equal to one (1) month of the Fees and Taxes in order to reestablish your connection. In addition, you will be responsible to pay BREEZYNOTES EHR for any collection costs and attorneys’ fees incurred by BREEZYNOTES EHR in pursuing past due payments.
   • Other Costs. You are responsible for any other costs you may incur in order to access and use the Software Service, such as electric bills, internet service provider charges, claim printing and mobile device charges.
6. USER OBLIGATIONS.
   • Security Measures. You agree to implement and maintain physical and electronic security measures to safeguard the Software Service when you access, input, display, store, share, and update or process any PHI. While the Software Service contains certain technical safeguards against misuse, you are responsible for any unauthorized access to or use of your Software Service account.
   • Notice of Breach. When accessing and using the Software Service, you agree to notify BREEZYNOTES EHR of any breach or suspected breach, unauthorized use or disclosure of information using the Software Service of which you become aware, and will cooperate with BREEZYNOTES EHR in mitigating and investigating the same as BREEZYNOTES EHR may direct you.
   • Compliance with Law. It is your sole responsibility to ensure that when accessing and using the Software Service, you comply with all applicable laws and regulations, including but not limited to those laws applicable to maintaining security, privacy, and confidentiality of PHI.
   • Professional Standards and Responsibility. It is your sole responsibility to uphold any professional or technical standards that may apply to the healthcare services you provide. The Software Service may provide information to assist you with clinical decision-making. However, BREEZYNOTES EHR makes no representation concerning the completeness, accuracy, or utility of any information in the Software Service. Further, BREEZYNOTES EHR has no liability to you or your patients for your use of the Software Service.
   • Cooperation with BREEZYNOTES EHR. You agree to cooperate with BREEZYNOTES EHR in its administration of the Software Service which shall include reasonable assistance in evaluating the Software Service as well as collecting and reporting data requested by BREEZYNOTES EHR for its administration.
7. USE OF PERSONAL HEALTH INFORMATION ENTERED INTO THE SOFTWARE SERVICE.
   • Parties Permitted to Access Your PHI from the Software Services. The Software Service enables you to access, input, display, view, and store, transmit and process Personal Health Information (“PHI”). As your business associate, and subject to the provisions of Section 9, and also subject to any recipient’s agreement to comply with laws and regulations applicable to the use and disclosure of health information, you authorize BREEZYNOTES EHR to use and disclose the PHI you have stored in the Software Service in the following manner:
     • To provide you and your Authorized Users with access to the PHI;
     • To provide third-party health care providers, covered entities and their business associates (to whom you have given written direction to BREEZYNOTES EHR to provide access to the Software Service and the PHI) who have agreed to integrate with the Software Service subject to appropriate assurances (in BREEZYNOTES EHR’s sole discretion);
     • To entities responsible for payment for healthcare services you provide to your patients, including, but not limited to, health plans, health care clearinghouses, insurance companies, health care exchanges, medical groups, your service providers and any other entity responsible for payment, unless you advise us that the patient has paid out of pocket and does not want such information disclosed to his or her health insurer.
   • Use of PHI by BREEZYNOTES EHR. In addition to sharing your PHI in accordance with Section 7(a), we may use PHI:
     • To administer and manage the Software Service and our business, as well as to carry out our legal responsibilities;
     • To request, receive, and incorporate into the Software Service information from your authorized service providers, our third‑party partners, or covered entities and their business associates who may be providing or paying for services for one or more of your patients, which information may include, without limitation, clinical results, prescription history, eligibility information and the like, and which information shall be treated as Protected Health Information Data upon integration with the Software Service for purposes of this Agreement.

8. HEIGHTENED PROTECTION FOR CERTAIN INFORMATION. Federal and state laws may impose restrictions on the use and disclosure of certain kinds of health information, including mental health records or such information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that PHI may be properly disclosed for the purposes set forth in Section 7(a) subject to the restrictions of applicable law.
9. BUSINESS ASSOCIATE AGREEMENT.
   • BREEZYNOTES EHR shall be bound by the terms of this Section 9 only to the extent that: (i) you are an Authorized User that is a “covered entity” pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and the implementing regulations of HIPAA and HITECH (HIPAA, HITECH, and the implementing regulations of HIPAA and HITECH are hereinafter collectively referred to as “HIPAA”); and (ii) BREEZYNOTES EHR is acting as your “business associate” pursuant to HIPAA.
   • Definitions. Capitalized terms not defined in this Section 9 shall have the meanings set forth in HIPAA. “PHI” means Protected Health Information, limited to such information created, received, transmitted, or maintained by BREEZYNOTES EHR from or on behalf of you. The term “PHI” shall include ePHI. “ePHI” means PHI, limited to such information created, received, transmitted, or maintained in Electronic Media by BREEZYNOTES EHR from or on behalf of you.
   • Permitted Use and Disclosure of PHI. BREEZYNOTES EHR shall use and disclose PHI as necessary to perform its obligations under this Section 9 and/or the Agreement or as otherwise permitted or Required by Law. Further, BREEZYNOTES EHR may: (i) use PHI for its proper management and administration and to carry out its legal responsibilities; (ii) disclose PHI to a third party for BREEZYNOTES EHR’s proper management and administration and to carry out its legal responsibilities, provided that the disclosure is Required by Law or BREEZYNOTES EHR obtains reasonable assurances from the third party regarding the confidential handling of such PHI; (iii) use PHI to aggregate data as set forth in HIPAA; and (iv) de‑identify PHI and use such de-identified data in accordance with de‑identification requirements set forth in HIPAA.
   • Minimum Necessary. BREEZYNOTES EHR shall make uses, disclosures and requests for PHI consistent with BREEZYNOTES EHR’s minimum necessary policies and procedures.
   • Safeguards. BREEZYNOTES EHR shall use reasonable and appropriate safeguards, and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to ePHI, to prevent use or disclosure of PHI other than as provided for by this Section 9.
   • Mitigation. BREEZYNOTES EHR shall mitigate, to the extent practicable, any harmful effect that is known to BREEZYNOTES EHR of a use or disclosure of PHI in violation of BREEZYNOTES EHR’s policies and procedures or the requirements of HIPAA.
   • Reporting. BREEZYNOTES EHR shall promptly report to you any: (i) use or disclosure of PHI not provided for by this Section 9 which it discovers; and (ii) any Security Incident involving PHI of which it becomes aware. Upon your request, Business Associate shall cooperate with your investigation of such event. Following the discovery of a Breach of Unsecured PHI, BREEZYNOTES EHR’s notice to you shall include, to the extent possible: (1) a brief description of the Breach; (2) the types of Unsecured PHI involved; and (3) steps taken by BREEZYNOTES EHR to investigate and mitigate against further Breaches. The parties agree that this Section 9 constitutes notice by BREEZYNOTES EHR to you of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no other additional notice to you shall be required. “Unsuccessful Security Incidents” include, but are not limited to, pings and other broadcast attacks on BREEZYNOTES EHR’s firewall, port scans, unsuccessful log‑on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI.
   • Agents and Subcontractors. BREEZYNOTES EHR shall require that Subcontractors that create, receive, transmit or maintain PHI on behalf of BREEZYNOTES EHR agree to the restrictions and conditions that apply to BREEZYNOTES EHR with respect to such information pursuant to this BAA.
   • Access to and Amendment of PHI. The parties agree that due to your designation as an Authorized User, BREEZYNOTES EHR has met its obligations to: (i) make available to you such PHI as required by 45 C.F.R. § 164.524; and (ii) provide such PHI to you for amendment pursuant to 45 C.F.R. § 164.526 and make such amendments as directed or agreed to by you. In the event any Individual delivers directly to BREEZYNOTES EHR a request for access to or amendment of PHI, BREEZYNOTES EHR shall promptly forward such request to you.
   • Accounting of Disclosures. BREEZYNOTES EHR shall maintain and make available to you, upon your written request, the information that would be required for you to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. In the event any Individual delivers directly to BREEZYNOTES EHR a request for an accounting of disclosures, BREEZYNOTES EHR shall promptly forward such request to you.
   • Availability of Books and Records. BREEZYNOTES EHR shall make its internal practices, and books and records relating to the use and disclosure of PHI available to the Secretary of the U.S. Department of Health and Human Services (“Secretary”) in a time and manner designated by the Secretary, for purposes of determining your compliance with HIPAA.
   • Delegated Functions. To the extent BREEZYNOTES EHR has been delegated, pursuant to this Agreement, and is to carry out your obligation(s) under Subpart E of 45 C.F.R. Part 164, BREEZYNOTES EHR will comply with the requirement(s) of Subpart E of 45 C.F.R. Part 164 that apply to you in the performance of such delegated obligation.
   • Your Obligations. To the extent such limitation(s), change(s) or restriction(s) may affect BREEZYNOTES EHR’s Use, Disclosure or access to PHI, you shall notify BREEZYNOTES EHR of any: (i) limitation(s) in your notice of privacy practices pursuant to 45 C.F.R. § 164.520; (ii) changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI; and (iii) restriction(s) on the use or disclosure of PHI that you have agreed to or are required to abide by pursuant to 45 C.F.R. § 164.522. Notwithstanding the foregoing, you shall not agree to or implement any such limitation, change, or restriction that may affect your status as an Authorized User or BREEZYNOTES EHR’s ability to provide the Software Service as set forth in this Agreement. You shall not request BREEZYNOTES EHR to use or disclose PHI in any manner that would not be permissible under HIPAA if done by you.
   • Retrieval of Your PHI Data.  Within thirty (30) days after the expiration or termination of this Agreement, you may request that we provide you with access to your PHI Data through the Software Service solely for the purpose of retrieving your PHI Data. After such thirty (30) day period, we will have no obligation to maintain or provide any PHI Data and may delete all such PHI Data, except as prohibited by law. You shall be responsible for payment of all fees and charges incurred by BREEZYNOTES EHR to transition records, including all costs associated with producing printed or electronic copies of records; however, BREEZYNOTES EHR makes no representation or warranty that any patient data can be successfully formatted and transferred in useable form to any non‑BREEZYNOTES EHR system.
   • Miscellaneous. A reference in this Section 9 to a section in HIPAA means the section in effect or as amended. To the extent HIPAA is materially amended in a manner that changes the obligations of the parties, such changes shall be incorporated by reference into this Section 9 on the effective date of such revisions under law, as if set forth in this Section 9 in their entirety.
10. SERVICE AVAILABILITY AND SERVICE LEVELS. BREEZYNOTES EHR agrees to use commercially reasonable measures to make the Software Service available to Customer on a uninterrupted basis 24‑hour‑a‑day, 7‑day‑a‑week basis.
    • Service Level Commitments:
      • BREEZYNOTES EHR shall ensure that there will be Services availability with uninterrupted 99.99% or better (measured monthly on HTTP service for Web servers and on SQL service for database servers) (“Uptime Requirement”).
      • Customer Support phone and email response time objectives of one hour or less during normal business hours with after hours response times one business day or less.
    • For Scheduled Maintenance:
      • “Scheduled Maintenance” shall mean any maintenance at the BREEZYNOTES EHR contracted data center (7 Medical) to which you are connected (a) of which you will be notified three (3) business days in advance, and (b) that is performed during a standard maintenance window from 12 AM to 4 AM Central Time. Actual Scheduled Maintenance downtime shall not exceed ten hours per calendar month per Service.
      • For application and patch updates, notice to you as follows: seven (7) business days notice prior to any application of non-critical patches; and (ii) forty-eight (48) hours notice prior to any critical patches; and (iii) thirty (30) days notice prior to upgrading or modifying the operating system or SQL applications or any other hosted applications.
      • Notice of Scheduled Maintenance will be provided by email to your designated point of contact, or such other email address as you may identify from time to time.
    • “Urgent Maintenance” shall mean any maintenance efforts requiring immediate action to correct a problem that will likely cause material service outages. BREEZYNOTES EHR will provide notice of Urgent Maintenance to your designated point of contact shown in Section 19 as soon as is practicable under the circumstances.
    • SERVICE CREDITS. Your sole remedy for any failure by BREEZYNOTES EHR to meet any of the Service Level commitments noted in subsection 10(a)(i) above shall be for you to receive a Service Credit from BREEZYNOTES EHR to compensate you for the loss of or degradation in Service Quality (“Service Credit”). Other than during a Scheduled Maintenance period, should BREEZYNOTES EHR fail to meet its Service Level Commitment due to an outage at BREEZYNOTES EHR hosting provider in excess of one hour within a twenty-four (24) hour period, you will be eligible to receive a Service Credit. The Service Credit is equal to one (1) day of affected Service’s monthly recurring Service charges for each twenty-four (24) hour period during which BREEZYNOTES EHR was unavailable in excess of one hour. For purposes of computing Service Credit under this subsection 10(d), a month shall consist of thirty (30) days.
      • At the end of a calendar month, you may submit a request for Service Credit to BREEZYNOTES EHR. The request shall be in the form of a written request for that month and shall note the time, day, and length of the Service outage or deficiency, including, if applicable, the technical support ticket number
      • Within thirty (30) days of BREEZYNOTES EHR’s receipt of your request, and after verification of the Service outage or deficiency, BREEZYNOTES EHR will issue a Service Credit to you. Service Credit may only be used against future BREEZYNOTES EHR invoices, except upon termination, in which case it shall be a refund. You waive any claim for Service outages or deficiencies if you fail to submit a report by the last business day of the month following the month in which the Service outage or deficiency occurred.
      • You shall not be eligible for Service Credits where interruptions, outages, Service deficiencies, or access or use problems to the extent: (i) are caused by you, your computer or your computer applications; (ii) occur during permitted Scheduled Maintenance periods; (iii) are attributable to local, regional, or national carriers that provide electronic data communication transport services to BREEZYNOTES EHR, 7 Medical or to you; (iv) are due to unlawful use or use in breach of the terms of this Agreement by you.

11. COMPUTER SYSTEMS AND YOUR IMPLEMENTATION. BREEZYNOTES EHR will specify requirements to access the Software Service from time to time. You agree and understand that you are responsible for obtaining, installing, configuring, and/or maintaining all hardware, software, and communication systems necessary to access the Software Service.
12. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
    • Ownership of Software Service. The Software Service, including all of its software code, user interfaces and content (“BREEZYNOTES EHR Content”) (other than your PHI) are the sole and exclusive property of BREEZYNOTES EHR.
    • Ownership of Data. You own and retain all rights to the PHI (as defined in Section 7) that you provide while using the Software Service.
    • De-Identified Data. In consideration for the provision of the Software Service, you understand BREEZYNOTES EHR owns all rights, title, and interest in and any de‑identified information created from your use of the Software Service. You agree that BREEZYNOTES EHR may sell, license, or otherwise disclose this de‑identified information for any purpose without restriction, and that you have no interest in the proceeds resulting from the sale, license, or other commercialization of such de‑identified information.
    • Work Product. In utilizing the Software Service, you will be permitted to create certain reports and other work product (“Your Work Product”). Your Work Product created using the Software Service is and will remain your sole and exclusive property. You also will own any reports you generate when accessing or using the Software Service, provided, however, that the BREEZYNOTES EHR Content shall remain the property of BREEZYNOTES EHR.
    • Intellectual Property Rights Defined. For purposes of this Agreement, “Intellectual Property Rights” means all patents, trademarks, drawings, inventions, copyrights, samples, processes, moral rights, rights of publicity, rights of ownership, designs, design rights, trade secrets, specifications, instruction manuals, technology, materials, know‑how, information, data, goodwill, improvements, and writings created or developed with regard to the Software Service, PHI, BREEZYNOTES EHR Content or Your Work Product.
13. DISCLAIMER, EXCLUSION OF WARRANTIES, AND LIMITATIONS OF LIABILITY.
    • No Warranties. BREEZYNOTES EHR PROVIDES ACCESS TO THE SOFTWARE SERVICE AND THE BREEZYNOTES EHR CONTENT AS WELL AS ANY INFORMATION CONTAINED THEREIN ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND. BREEZYNOTES EHR EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED, WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE FOR THE SOFTWARE SERVICE AND THE BREEZYNOTES EHR CONTENT. BREEZYNOTES EHR DISCLAIMS ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS, LOSS OF DATA, OR LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SOFTWARE SERVICE.
    • Unauthorized Access; Lost or Corrupt Data. BREEZYNOTES EHR IS NOT RESPONSIBLE FOR: (I) UNAUTHORIZED ACCESS TO YOUR ELECTRONIC HEALTH RECORDS, FACILITIES OR EQUIPMENT BY PERSONS USING THE SOFTWARE SERVICE; (II) ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SOFTWARE SERVICE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES. YOU HEREBY WAIVE ANY DAMAGES WHICH MAY RESULT FROM LOST OR DATA CORRUPTION, INCORRECT REPORTS, OR INCORRECT DATA FILES OCCASSIONED BY PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE.
    • Damages Caused by Other Users. YOU ACKNOWLEDGE THAT OTHER USERS HAVE ACCESS TO AND ARE USING BREEZYNOTES EHR’S SOFTWARE SERVICE INCLUDING THOSE USERS YOU HAVE AUTHORIZED TO ACCESS YOUR ELECTRONIC HEALTH RECORDS, THE ACTIONS OF SUCH OTHER USERS ARE BEYOND BREEZYNOTES EHR’S CONTROL. THEREFORE, BREEZYNOTES EHR DOES NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY INFRINGEMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ELECTRONIC MEDICAL RECORDS OR PHI ON THE SOFTWARE SERVICE RESULTING FROM ANY USER’S ACTIONS OR FAILURES TO ACT.
    • Limitation of Liability. UNDER NO CIRCUMSTANCES WILL BREEZYNOTES EHR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, LIQUIDATED OR INCIDENTAL DAMAGES, OR CLAIMS (AS DEFINED IN SECTION 14(a)) FOR LOST PROFITS, LOST REVENUES OR LOSS OF USE, ARISING FROM OR RELATED TO: (I) THE ACCESS OR USE OF THE SOFTWARE SERVICE; (II) THE ELECTRONIC MEDICAL RECORDS; (III) PHI; OR (IV) THE SUBJECT MATTER OF THIS AGREEMENT. EXCEPT FOR INFRINGEMENT CLAIMS (AS DEFINED IN IN SECTION 14(a)), IN NO EVENT WILL BREEZYNOTES EHR’S LIABILITY FOR ANY CLAIMS EXCEED THE PRICE PAID BY YOU FOR THE SOFTWARE SERVICE GIVING RISE TO A CLAIM FOR A PERIOD OF ONE (1) YEAR PRIOR TO THE DATE OF THE CLAIM.
14. INDEMNIFICATION OBLIGATIONS AND PROCEDURES.
    • Indemnification by BREEZYNOTES EHR. We agree to indemnify, defend and hold harmless you, as well as your parents, subsidiaries, affiliates, officers, directors, employees, attorneys and agents from and against all claims, allegations, lawsuits, losses, damages, verdicts, settlements, costs, penalties, expenses and attorneys’ fees (“Claim”) brought against you by a third party alleging that your use of the Software Service infringes the Intellectual Property Rights of that third party (“Infringement Claim”).

Notwithstanding the foregoing, BREEZYNOTES EHR will not be obligated to indemnify you against an Infringement Claim to the extent that the Infringement Claim results from (a) your unauthorized use of the Software Service in combination with any good or service provided by a third party; or (b) your combination of the Software Services with any other good or service to the extent such Infringement Claim would not have occurred but for such combination. BREEZYNOTES EHR’s indemnification obligations to you under this Section 14(a) shall in no event exceed $1,000,000.00 in total.

• Indemnification by You. You agree to indemnify, defend and hold harmless BREEZYNOTES EHR, as well as its parents, subsidiaries, affiliates, officers, directors, employees, attorneys and agents from and against any Claim brought by a third party: (a) resulting from your use or misuse of the Software Service in violation of this Agreement; (b) violations of applicable law: or (c) a data security breach caused by you.
• Notification. The party seeking indemnification will promptly notify the indemnifying party of any Claim brought against them by a third party subject to indemnification under this Agreement. The indemnifying party will defend, at its own costs the Claim using experienced counsel.

The party seeking indemnification may, at its option and expense, participate in the defense of any Claim. The indemnifying party may not settle any Claim without the prior written approval of the indemnified party, which approval will not be unreasonably withheld or delayed.

• Procedure. In the event that the indemnifying party does not, within fifteen (15) days after receiving written notice of a Claim from the indemnified party, agree in writing to accept the defense of, and assume all responsibility for, such Claim, then the party seeking indemnification will have the right to defend against, negotiate, settle, or otherwise resolve the Claim in such a manner as the indemnified party deems appropriate, in its sole discretion, and the indemnified party will be entitled to indemnification and reimbursement from the indemnifying party for such Claim at the indemnifying party’s expense.
• Rights of BREEZYNOTES EHR’s to Remedy Infringement Claims. If an Infringement Claim is brought against you by a third party, BREEZYNOTES EHR shall have the right to, at its option:
  • Procure the right for you to continue using the Software Service without any additional cost to you;
  • Replace or modify the Software Service to eliminate the alleged infringement while providing substantially equivalent quality; or
  • If BREEZYNOTES EHR is unable to satisfy the criteria set forth in (i) or (ii) within a commercially reasonable time frame, either party may terminate the Agreement upon written notice.

15. INSURANCE.  During the term, you shall obtain and maintain the following insurance coverage during the term of this Agreement for the benefit of BREEZYNOTES EHR:
    • commercial general liability in an amount not less than $1,000,000 per occurrence; and
    • professional liability (errors and omissions) insurance in an amount not less than $1,000,000 per occurrence;
    • privacy and network security (“cyber”) insurance covering loss arising out of or in connection with loss or disclosure of confidential information or Protected Health Information, in a minimum  amount of $1 million per loss.
16. TERM; SUSPENSION; TERMINATION.
    • Term. The initial term of this Agreement commences 30 days from the date you create an account or otherwise “sign up” for the Software Service and will continue for a period of one (1) year, with automatic renewals of one (1) year periods thereafter until terminated as provided in this Section 16.
    • Termination for Convenience. Either party may terminate this Agreement for convenience on thirty (30) days’ prior written notice to the other party.
    • Termination for Cause. In the event a party breaches its obligations under this Agreement, the non‑breaching party agrees to provide the breaching party with written notice of the breach, providing reasonable detail concerning the breach and a thirty (30) day period to cure the breach. If the breaching party fails to cure the breach within the cure period, the non‑breaching party has the right to provide notice terminating this Agreement and to seek any other remedies available at law or in equity resulting for the breach.
    • Suspension of Access. BREEZYNOTES EHR may suspend your access to the Software Service immediately, pending cure of any breach of this Agreement, or in the event BREEZYNOTES EHR determines in its sole discretion that your access, or that of any Authorized User, threatens the Software Service or the confidentiality, privacy, integrity, or availability of the information within the Software Service, or that you have violated or may violate this Agreement, or that any person is or may be making unauthorized use of the Software Services using the access meant for you or an Authorized User. BREEZYNOTES EHR’s right of suspension is cumulative with BREEZYNOTES EHR’s right to terminate the Agreement in accordance with this Section 16. You agree that suspension of your access to the Software Service will not relieve you of your liability for Fees and Taxes in accordance with Section 5 of this Agreement.
17. MODIFICATION. BREEZYNOTES EHR expressly reserves the right to update or change the Software Service, or the terms of this Agreement, from time to time. We recommend that you review this Agreement regularly. By continuing to use the Software Service after this Agreement has been updated or changed, you understand and agree to the terms of the revised Agreement.
18. FORCE MAJEURE. In the event of an occurrence outside the control of either party which prevents BREEZYNOTES EHR from providing the Software Service or you to access or use the Software Service, including, but not limited to, acts of God, accident, war, acts of terrorism, restraint by government, natural crisis, strike, embargo, or similar events (“Force Majeure Event”), the party experiencing the Force Majeure Event shall immediately notify the other party in writing detailing the Force Majeure Event. If the party cannot cure the Force Majeure Event within thirty (30) days of the date of notice of the Force Majeure Event, the other party may terminate this Agreement in accordance with Section 16.
19. NOTICE. All notices or communications required under this Agreement are to be sent in writing (i) by facsimile transmission (with proof of transmission), (ii) by email transmission (with return receipt evidence), or (iii) by overnight mail courier service. Any notice sent by electronic transmission shall be deemed delivered upon the date of successful transmission. Any notice sent by overnight delivery will be deemed delivered upon receipt. If the notice is sent on a weekend or holiday, the notice will be deemed received on the following business date. All notices required under this Agreement must be in writing and sent to the following contact persons (which information may be updated from time to the time by the parties):

If to BREEZYNOTES EHR:

7525 Mitchell Road
Suite 215
Eden Prairie, MN 55344

To you:
At the current contact information you have
on file with BREEZYNOTES EHR at the time BREEZYNOTES EHR provides notice.

20. ASSIGNMENT. You may not assign your rights or obligations under this Agreement in whole or in part without BREEZYNOTES EHR’s prior written consent and any assignment in violation of this provision shall be null and void. BREEZYNOTES EHR may assign, transfer or otherwise delegate its rights or obligations under this Agreement without your prior written consent.
21. SEVERABILITY. In the event that any provision of this Agreement is held to be invalid or unenforceable, in whole or in part, the remaining portions of the Agreement will remain in force and effect.
22. APPLICABLE LAW. Minnesota law applies to this Agreement, without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Services does not apply to this Agreement.
23. DISPUTE RESOLUTION; FORUM.
    • If a dispute arises with regard to the subject matter of this Agreement, the parties agree to attempt to resolve any such dispute through good faith settlement negotiations to commence within five (5) business days of a written request by the other party.
    • If the negotiations are unsuccessful within thirty (30) days of the date of a written request in accordance with Section 23(a), the parties agree that either party may submit the dispute to mediation with the Judicial Arbitration and Mediation Service (“JAMS”), or its successor, for mediation in Minneapolis, Minnesota with each party to pay its own legal fees and each party to equally share the mediation costs. The parties agree that JAMS will appoint a mediator who is an attorney and has substantial experience with resolving disputes regarding software-as-a-service agreements. If the parties are unable to resolve a dispute after the mediator has declared an impasse in writing, then the parties agree to submit the dispute to the state or federal courts with jurisdiction in Hennepin County, Minnesota. You irrevocably consent to submit to jurisdiction in such applicable courts.
24. SURVIVAL OF PROVISIONS. All provisions of this Agreement that by their sense and context are intended to extend beyond the expiration or termination of this Agreement for any reason shall survive.
25. ENTIRE AGREEMENT. This Agreement and any exhibits constitute the entire agreement between the parties with regard to their subject matter and supersede all prior negotiations, discussions, understandings or agreements between the parties. The parties agree that any amendment to this Agreement must be in writing and signed by both parties.
26. RELATIONSHIP OF PARTIES. The parties acknowledge that in providing the Software Service, BREEZYNOTES EHR is acting solely as an independent contractor and not as your agent or employee. Nothing contained in this Agreement is intended to create a partnership, joint venture or employment relationship between the parties or to impose upon the parties any of the duties or responsibilities of partners, joint venturers or employer-employee.
27. WAIVERS. Neither party’s failure nor delay in exercising any right under this Agreement will limit or operate as a waiver thereof, nor will the waiver of any breach by the other party waive any other or further breach.
28. INJUNCTIVE RELIEF. The parties agree that any breach of certain sections of this Agreement may result in irreparable harm for which money damages may be inadequate. Accordingly, BREEZYNOTES EHR will be entitled to seek immediate equitable and other provisional relief, including, without limitation, specific performance of this Agreement and a temporary restraining order and/or preliminary and/or permanent injunction, as a remedy for such breach in addition to all other remedies available to such party at law or in equity and without prejudice to any such other remedies.
29. PRIVACY POLICY. BREEZYNOTES EHR provides the Software Service under this Agreement through its website https://breezynotes.com. Your use of the Software Services is subject to BREEZYNOTES EHR’s Privacy Policy (https://breezynotes.com/privacy-policy). By using the Software Services, you acknowledge that you have reviewed the Privacy Policy and have consented to its terms.