Element5 End User License Agreement

Customer and WellSky Corporation or its subsidiary or affiliate (collectively, “WellSky”) have entered into an Order Form that provides for or includes Customer’s access to and use of the service provided by Element5, Inc. (the “Company”) and set forth in this Order (the “Company Service”).  This End User License Agreement (“EULA”), together with the Order Form (together, the “Agreement”), govern Customer’s access and use of the service provided by the Company (the “Company Service”). The Company shall be a third-party beneficiary of this Agreement. 

1. Use of Company Service.  Customer may access and use the Company Service for its internal business purposes during the period provided for in the Order Form, for the fees provided for in the Order Form.

2. Implementation. Either WellSky or the Company will provide implementation or installation services for the Company Service. Customer agrees to cooperate in the implementation process, as reasonably necessary.

3. Authorized Users.  As a part of the Company Service, the Company may provide Customer with access to a web-based portal (the “Automation Hub”) that Customer may use to monitor and verify the operation of the Company Service.  Customer will designate the persons who are authorized by Customer from time to time to access and use the Automation Hub on Customer’s behalf (“Authorized Users”). The Automation Hub may only be accessed and used by Authorized Users who do so for the purposes of performing their job functions for Customer.  Customer is responsible for the use of the Automation Hub by its Authorized Users, and their compliance with this Agreement.

4. Restrictions on Use.  Customer agrees not to: (1) resell, sublicense, or otherwise make the Company Service available to any third party; (2) use the Company Service either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (3) interfere with or disrupt the integrity or performance of the Company Service or any websites or web-based applications; (4) deactivate, impair, or circumvent any security or authentication measures of the Company Service or any websites or web-based applications; (5) access the Company Service for purposes of benchmarking or for purposes of developing a competing service; or (6) authorize any third parties to do the above. Customer represents and warrants to the Company that (a) deployment of the Company Service as contemplated by this Agreement will not violate or breach the terms of use of, or access to, any third-party systems, platforms, websites, networks, and/or devices; and (b) any use of the Company Service to access a third-party system, platform, website, network, and/or device will conform to applicable restrictions, including, as applicable, through the use of appropriate and legitimate credentials secured by the Customer.

5. Ownership Rights.  Company and its licensors own all worldwide right, title and interest in and to the Company Service (as it may be implemented, configured or modified for use by Customer), including all worldwide intellectual property rights therein (collectively, the “Company IP”).  This Agreement does not convey any proprietary interest in or to any Company IP or rights of entitlement to the use thereof except as expressly set forth herein.

6. Customer Data.  The Company Service will access and/or upload information, documents, data, forms, or other material provided by or on behalf of Customer, to be analyzed, processed, used or handled by the Company Service (“Customer Data”).  Company assumes no responsibility for the content of Customer Data.  Customer grants Company the right to access and use the Customer Data during the term of this Agreement as necessary to provide the Company Service to Customer and to identify or resolve technical problems with the Company Service.  Customer represents and warrants that (1) it has, and will continue to have, during the term of this Agreement, the legal right and authority to access, use and disclose to Company all Customer Data; and (2) Company’s use of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third party.

7. Security of Customer Data.  Company will maintain (and will require its third party service providers to maintain) reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of the Customer Data, in accordance with applicable industry standards.

8. Support; Warranties.  The Company will use commercially reasonable efforts to correct errors in the operation of the Company Service as promptly as practicable. Company will provide Customer with any updates to the Company Service that the Company may release from time to time to its customers generally, to correct errors or to improve or enhance the Company Service.  There will be no additional fees for the use of any such updates; provided, however, that payment of additional fees may be required for optional upgrades that include material additional functionality that the Company does not release to its customers generally without additional Company warrants that it will use commercially reasonable efforts to cause the Company Service and the Automation Hub (if applicable) to be available 24 hours per day, seven days per week, other than during periods of scheduled maintenance.  Company agrees to use commercially reasonable efforts to schedule maintenance only during nighttime hours.  In the event of unscheduled downtime, the Company will use all commercially reasonable efforts to restore operation or availability as soon as practicable.  Customer acknowledges, however, that the operability of the Company Service, and availability of the Automation Hub, may depend on the equipment or services of third parties and that the Company is not responsible for downtime due to causes not within the Company’s reasonable control.

9. Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7 AND 8 ABOVE, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE COMPANY SERVICE.  WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7 AND 8 ABOVE, COMPANY DISCLAIMS ANY WARRANTY THAT THE COMPANY SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE COMPANY SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

10. Indemnification.  Company will: (1) defend Customer against any third party claim (a “Claim”) alleging that the Company Service infringes any copyright or trademark or misappropriates a trade secret of that third party; and (2) indemnify and hold Customer harmless from any final award of damages or settlement amount arising in connection with any such Claim.  In the event that Company’s right to provide the Company Service is enjoined, Company may obtain the right to continue providing the Company Service, replace or modify the Company Service so that it becomes non-infringing, or terminate this Agreement and refund to Customer the unused portion of the fee paid for periods after such termination.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.  Company shall have no liability under this paragraph to the extent that a Claim is based on use of the Company Service in a manner that violates this Agreement or the instructions given to Customer by Company, or use of the Company Service in combination with hardware, software, processes or other items not provided by Company where the Company Service alone would not infringe. Customer will: (1) defend Company, its officers, directors and employees against any Claim arising out of or related to (a) use of the Company Service by Customer or an Authorized User in a manner that violates Customer’s representations, warranties or covenants in this Agreement, or (c) Company’s use of the Customer Data in accordance with this Agreement; and (2) indemnify and hold Company harmless from any final award of damages or settlement amount arising in connection with any such Claim. The indemnified party agrees to (x) promptly notify the indemnifying party in writing of any actual or threatened Claim, (y) to give the indemnifying party sole control of the defense thereof and any related settlement negotiations, and (z) cooperating and, at the indemnifying party’s request and expense, assisting in such defense.

11. Limitation of Liability.  IN NO EVENT WILL WELLSKY, COMPANY, AND ITS LICENSORS BE LIABLE 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 COMPANY SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE COMPANY SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF ANY PARTY RELATING TO THIS AGREEMENT OR THE COMPANY SERVICE EXCEED THE FEES PAID BY CUSTOMER FOR USE OF THE COMPANY SERVICE FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

12. Offshoring.  Customer agrees that Company may use employees of its wholly-owned subsidiary in India, Ele5 Solutions, Pte. Ltd., to remotely access Customer’s Confidential Information or data stored by Company in the United States, in order to assist Company in providing support or implementation Company Services pursuant to this Such access of Client’s Confidential Information or data by personnel of such subsidiary is conditioned on the following: (i) no Client Confidential Information or data is stored or transmitted outside of the United States, (ii) such subsidiary agrees to comply with all terms and conditions regarding treatment of Client Confidential Information or data in this Agreement, and (iii) Company is responsible for all acts and omissions of such subsidiary in compliance with this Agreement.