Legal

Services Agreement & Business Associate Agreement

This Services Agreement and BAA sets forth the provisions under which Customer will use the Services provided by BreezyBilling, as defined in the applicable Order Form(s) executed by the Parties.

Last Updated: March 2024

Recitals

WHEREAS, BreezyBilling provides services to the healthcare industry, including claims processing, medical review, medical billing and other services; and

WHEREAS, Customer wishes to engage BreezyBilling to provide certain practice management, claims and billing services as set forth in the applicable Order Form whereby BreezyBilling will file insurance claims with government and commercial companies by electronic and paper means on behalf of Customer; with such services to be provided by BreezyBilling upon the terms provided for in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows.

Definitions

“Agreement” means this Services Agreement, Business Associate Agreement (“BAA”), and any applicable Order Form. As to any particular Order Form, the Order Form, BAA, and these terms together constitute the entire Agreement of the parties. In the event of a conflict between the provisions of this Agreement and the specific provisions in an Order Form, the provisions in the Order Form shall control but only for the applicable Services in such Order Form.

“Authorized Users” means Customer or individuals who are accessing the Services: (i) on behalf of Customer; or (ii) are authorized by Customer and who do not compete with BreezyBilling.

“BreezyBilling” means BreezyNotes EHR DBA BreezyBilling, a Minnesota corporation, its successors and assigns.

“BreezyBilling IP” means 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, information, data, good will, improvements, and writings and all rights therein.

“Confidential Information” means all nonpublic information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (i) nonpublic information relating to the Disclosing Party’s technology, products, services, processes, data, customers, employees, business plans and methods, promotional and marketing activities, finances and other business affairs, and (ii) third-party information that the Disclosing Party is obligated to keep confidential.

“Customer” means the individual or entity specified as the “Customer” in the applicable Order Form and that is bound to this Agreement.

“Effective Date” means the date of Customer’s acceptance of this Agreement by signing the applicable Order Form with BreezyBilling.

“Order Form” means an order form signed by an authorized representative of each party that defines the Services and shall be incorporated by reference into, and governed by this Agreement.

“Payer” means a commercial, state or federal health insurance plan provider that sets service rates, collects payments, processes claims, and pays provider claims.

“Scheduled Maintenance” means any maintenance at the BreezyBilling contracted data center to which Customer is connected (a) of which Customer 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.

“Software Service” means the BreezyNotes Practice Management software 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.

“Urgent Maintenance” means any maintenance efforts requiring immediate action to correct a problem that will likely cause material service outages. BreezyBilling will provide notice of Urgent Maintenance to Customer’s designated point of contact as soon as is practicable under the circumstances.

Article 1

Provision of Services

1.1Medical Billing Services

BreezyBilling agrees to provide certain medical billing, RCM, Practice Management, and other related services to Customer that are agreed to by the parties on the terms set forth in an Order Form (the “Services”) and subject to the conditions set forth in this Agreement. Each Order Form will define: (i) the Services to be provided, (ii) BreezyBilling’s compensation and payment deadlines, (iii) any additional terms and conditions applicable to the Services, if any, and (iv) such other details as the parties may deem appropriate. Unless otherwise provided therein, each Order Form will become effective upon execution by the parties and shall be incorporated by reference into, and governed by, this Agreement. Any changes to any Order Form shall be permitted only upon written agreement of the parties.

1.2Software Service

Unless expressly stated otherwise within an Order Form, the Services shall include access for Customer to the Software Service.

Grant of License. BreezyBilling grants Customer and its Authorized Users a limited, non-exclusive, revocable, non-sublicensable, non-transferable right and license to access and use the Software Service during the Term to store, retrieve, update, share and process Protected Health Information (“PHI”).

Access to the Software Service. To access the Software Service, Customer must create an account by providing BreezyBilling with contact information, status as a health care provider, and health system affiliation. By accessing the Software Services, Customer represents to BreezyBilling that it is a properly credentialed healthcare provider. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared.

User Obligations.

Customer agrees to implement and maintain physical and electronic security measures to safeguard the Software Service when Customer accesses, inputs, displays, stores, shares, and updates or processes any PHI. Customer is responsible for any unauthorized access to or use of its Software Service account.

Notice of Breach. During the Term, Customer agrees to immediately notify BreezyBilling of any known or suspected breach, unauthorized use or disclosure of information using the Software Service, and will cooperate with BreezyBilling in mitigating and investigating the same.

Compliance with Law. Customer is solely responsible to ensure that when accessing and using the Software Service, Customer complies 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. Customer is solely responsible to uphold any professional or technical standards that may apply to the healthcare services Customer provides. The Software Service may provide information to assist Customer with clinical decision-making. However, BreezyBilling makes no representation concerning the completeness, accuracy, or utility of any information in the Software Service.

Authorized Uses; Prohibited Uses. Customer shall not use the Software Service to (i) infringe any third party’s intellectual property rights; (ii) circumvent or reverse engineer any content, feature or functionality of the Software Service; (iii) permit unauthorized persons to access or use the Software Service; (iv) create a competitive Software Service; (v) use the Software Service other than as permitted in this Agreement; and/or (vi) perpetuate a crime or fraud or violate any federal, state or local laws or regulations.

Cooperation with BreezyBilling. Customer agrees to cooperate with BreezyBilling in its administration of the Software Service, including providing reasonable assistance in evaluating the Software Service as well as collecting and reporting data requested by BreezyBilling.

Service Availability and Service Levels. BreezyBilling agrees to use commercially reasonable measures to make the Software Service available on an uninterrupted basis 24-hour-a-day, 7-day-a-week basis, except for (i) Scheduled Maintenance; (ii) Urgent Maintenance; and (iii) any unavailability caused by circumstances beyond BreezyBilling’s control.

Service Level Commitments. BreezyBilling shall ensure Software Services availability of 99.99% or better (measured monthly). Customer Support phone and email response time objectives of one business day or less during normal business hours.

Scheduled Maintenance. Actual Scheduled Maintenance downtime shall not exceed ten hours per calendar month per Service. Notice periods: seven (7) business days for non-critical patches; forty-eight (48) hours for critical patches; thirty (30) days for operating system or SQL application upgrades. Notice provided by email to Customer’s designated point of contact.

Computer Systems and Implementation. Customer agrees and understands that it is solely responsible for obtaining, installing, configuring, and/or maintaining all hardware, software, and communication systems necessary to access the Software Service.

1.3Relationship of the Parties

BreezyBilling’s relationship to Customer will be that of an independent contractor, and BreezyBilling is not an agent or employee of, and has no authority to bind, Customer. BreezyBilling will perform the Services under the general direction of Customer, but BreezyBilling will determine the manner and means by which the Services are accomplished.

Article 2

Payment for Services

2.1Charges for Services

Customer shall pay all fees set forth in the Pricing Addendum to the applicable Order Form, per the terms of the Pricing Addendum, unless otherwise specified.

2.2Payments

Unless otherwise specified in an Order Form, invoices for Services rendered hereunder shall be submitted monthly on the 10th of each month for the prior month’s fees and payment shall be due by Customer within thirty (30) days after receipt of such invoice. BreezyBilling will add a 5% penalty to any balance that is overdue 30 days, accrued monthly. All fees paid are non-refundable except as expressly set forth in this Agreement.

2.3Billing Disputes

Customer will notify BreezyBilling in writing of any disputed charges on any invoice within fifteen (15) days from the date of the applicable invoice with sufficient detail to allow the parties to resolve the dispute in good faith. Otherwise, such invoice shall be deemed approved for all purposes. Overdue fees shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law. In the event that any fees become more than thirty (30) days overdue, BreezyBilling may suspend performance of the Services upon written notice to Customer.

Article 3

Term and Termination

3.1Term

This Agreement shall commence upon the Effective Date and shall continue thereafter until terminated pursuant to the terms of this Agreement (the “Term”).

3.2Services Term

The provision of Services term of an Order Form shall commence as of the “Start Date” specified in the applicable Order Form and shall continue as specified in the Order Form. Thereafter, unless otherwise specified, the Services Term shall automatically renew for successive periods of one (1) year, unless either party provides written notice of nonrenewal at least sixty (60) days before the end of that current Services Term.

3.3Termination

This Agreement may be terminated as follows:

Immediately, in writing upon the mutual agreement of BreezyBilling and Customer.

By either party for cause if the other party breaches a material term or condition of this Agreement and fails to cure such breach within thirty (30) days of receipt of prior written notice of such breach.

At such time as all Order Form(s) have expired.

Immediately upon written notice to the other party, if the other party assigns all or part of its assets for the benefit of creditors, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if (a) such petitions are not dismissed within sixty (60) days of filing, or (b) the other party fails to inform the terminating party of a petition in writing within five (5) business days of the filing.

3.4Effect of Termination

Customer shall pay for all fees incurred and/or accrued up to and including the effective date of termination or expiration of this Agreement and any Order Forms. Upon termination: (i) Customer’s rights under this Agreement shall immediately terminate; (ii) each party shall return or destroy the other party’s Confidential Information and certify such return and/or destruction; and (iii) Customer shall give BreezyBilling access to their billing software for a period of 30 days after termination to finalize work on any claims submitted prior to termination.

Article 4

Representations and Warranties

4.1Existence and Authority

BreezyBilling and Customer represent and warrant that they are: (i) duly formed and validly existing entities in the jurisdiction of their incorporation; (ii) free and able to enter into this Agreement and to perform its obligations; (iii) shall comply with all applicable laws, rules, and regulations; and (iv) shall render all services in a professional and workmanlike manner.

4.2Customer Warranties

Customer represents and warrants to BreezyBilling that (i) this Agreement constitutes the legal, valid and binding obligations of Customer; and (ii) Customer has all rights and/or authorization required by law for BreezyBilling to communicate with all healthcare Payers and use all Customer Content, including all personal and other claims information provided by Customer to BreezyBilling in performance of the Services.

4.3Disclaimer; Exclusion of Warranties

CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE SERVICES AND THE SERVICES AND THE BREEZYBILLING CONTENT ARE PROVIDED ON AN “AS IS” BASIS AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BREEZYBILLING DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT) WITH REGARD TO THE SERVICES, THE SOFTWARE SERVICE AND THE BREEZYBILLING CONTENT. BREEZYBILLING 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.

Article 5

Confidentiality and Data Security

5.1Protection of Confidential Information

The Receiving Party shall keep all Confidential Information confidential and shall not use or disclose Confidential Information except as permitted under this Agreement or as otherwise necessary to fulfill its obligations under this Agreement. The Receiving Party shall use the same degree of care it uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information. The Receiving Party shall immediately notify the Disclosing Party of any use or disclosure of Confidential Information not permitted by this Agreement.

5.2Exceptions

The Receiving Party shall have no obligation to preserve the confidentiality of any information which (i) was previously known to the Receiving Party free of any confidentiality obligation; (ii) becomes publicly available by any means other than unauthorized disclosure; or (iii) is independently developed by the Receiving Party without reliance on any of the Disclosing Party’s Confidential Information.

5.3Use of PHI Entered into the Software Service

Subject to the terms of Exhibit A, Customer authorizes BreezyBilling to receive, store, transmit and maintain PHI as necessary to provide the Services to Customer.

5.4Heightened 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. Customer agrees that it is solely responsible for ensuring that information may be properly disclosed for the purposes set forth in this Agreement, subject to the restrictions of applicable law.

5.5Data Security

BreezyBilling will use commercially reasonable efforts to protect and prevent unauthorized disclosure of Customer Data while it is in BreezyBilling’s possession and control. Specifically, BreezyBilling agrees to take commercially reasonable steps to protect against: (a) reasonably anticipated threats or hazards to the privacy, security, integrity and/or confidentiality of Customer Data; and (b) unauthorized, accidental or unlawful destruction, loss, alteration or disclosure of or access to Customer Data.

Article 6

Indemnification and Liability

6.1Indemnification by BreezyBilling

BreezyBilling hereby agrees to defend, indemnify and hold harmless Customer, its officers, directors, employees and agents from and against any and all claims, losses, damages, liabilities, suits or proceedings including reasonable attorneys’ fees arising out of or relating to any third party’s claim that the Services infringe its valid United States patent, copyright, trade secret, trademark or other intellectual property rights; provided that Customer (i) promptly notifies BreezyBilling in writing of any such claim(s), (ii) permits BreezyBilling sole control to defend, compromise or settle such claim(s), and (iii) provides reasonable information, assistance and authority to enable BreezyBilling to defend such claim(s).

6.2Indemnification by Customer

Customer hereby agrees to defend, indemnify and hold harmless BreezyBilling, its officers, directors, governors, members, managers, employees and agents from and against any and all claims, losses, damages, liabilities, suits or proceedings including reasonable attorneys’ fees arising out of or relating to the Services, including Customer’s breach of this Agreement, Customer’s violation of applicable law, a modification of the Software Services, or the combination of the Software Services with any product, software or technology not provided by BreezyBilling.

6.3Limitation of Liability

EXCEPT WITH RESPECT TO BREEZYBILLING’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BREEZYBILLING OR ITS AFFILIATES, EMPLOYEES, MEMBERS, MANAGERS, GOVERNORS, AGENTS, CONTRACTORS, SUPPLIERS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, THE SERVICES, OR THE ACCESS OR USE OF THE SOFTWARE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS. SUBJECT TO THE LIMITATIONS CONTAINED IN THIS AGREEMENT, EXCEPT FOR INDEMNIFICATION OBLIGATIONS OR FOR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S ENTIRE CUMULATIVE AND AGGREGATE LIABILITY UNDER ANY AND ALL CAUSES OF ACTION ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AGGREGATE FEES PAID BY CUSTOMER TO BREEZYBILLING UNDER THE AFFECTED ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION.

Unauthorized Access; Lost or Corrupt Data.

BREEZYBILLING IS NOT RESPONSIBLE FOR: (I) UNAUTHORIZED ACCESS TO CUSTOMER’S ELECTRONIC HEALTH RECORDS, FACILITIES OR EQUIPMENT BY PERSONS USING THE SOFTWARE SERVICE; (II) ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SOFTWARE SERVICE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING CUSTOMER’S DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES.

Damages Caused by Other Users.

CUSTOMER ACKNOWLEDGES THAT OTHER USERS HAVE ACCESS TO AND ARE USING THE SOFTWARE SERVICE INCLUDING THOSE USERS CUSTOMER HAS AUTHORIZED TO ACCESS ITS ELECTRONIC HEALTH RECORDS. THE ACTIONS OF SUCH OTHER USERS ARE BEYOND BREEZYBILLING’S CONTROL. THEREFORE, BREEZYBILLING 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.

6.4Acknowledgement

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 6 ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE MAY NOT APPLY TO CUSTOMER.

Article 7

Intellectual Property

7.1Ownership

Customer acknowledges and agrees that as between Customer and BreezyBilling, BreezyBilling is and shall remain the exclusive owner of the Services, including the Software Services (other than Customer’s PHI and any third party’s intellectual property included therein), BreezyBilling’s Confidential Information and all BreezyBilling IP. Except as expressly set forth herein, Customer shall have no rights or interest in BreezyBilling IP.

7.2Customer Intellectual Property

All Customer Confidential Information and Customer’s data and information provided and/or made available to BreezyBilling under this Agreement (“Customer Content”) is, shall be and shall remain the exclusive property of Customer or its licensors. Customer owns and retains all rights to the PHI that Customer inputs or provides while using the Software Service.

7.3De-Identified Data

In consideration for the provision of the Software Service, Customer agrees that BreezyBilling owns all rights, title, and interest in any de-identified information created from Customer’s use of the Software Service. Customer agrees that BreezyBilling may sell, license, or otherwise disclose this de-identified information for any purpose without restriction.

7.4Work Product

Customer Work Product created using the Software Service is and will remain Customer’s sole and exclusive property. Customer also will own the contents of any reports Customer generates when accessing or using the Software Service, provided that the BreezyBilling IP shall remain the property of BreezyBilling.

Article 8

Clinician Responsibility

8.1Claims

Customer acknowledges that the Services include BreezyBilling’s submission of claims on behalf of Customer and its providers to third party Payers for services performed or supplies provided by Customer and its providers. Customer hereby authorizes BreezyBilling to submit claims on Customer’s behalf.

8.2Liability

Customer acknowledges and agrees that Customer is solely responsible for any claim submitted on Customer’s behalf by BreezyBilling and that Customer shall remain solely responsible and liable for any later adjustment of that payment for any reason. Customer acknowledges and agrees that the misrepresentation or falsification of any record or other information relevant to any claim submitted under the terms of this Agreement may be a crime and, upon conviction, may subject Customer or its providers to imprisonment and fine under applicable laws.

8.3Audit

Customer acknowledges and agrees that the Secretary of the U.S. Dept. of Health and Human Services and any Carrier has the right to audit and confirm any information supplied by Customer and has access to any and all claims documentation in Customer’s possession to verify the accuracy of any information provided by Customer relevant to any claim submitted under this Agreement. Customer further agrees that it shall not submit any claims which conflict with any applicable laws and that it is Customer’s responsibility to maintain all original source documents required by law.

Article 9

Miscellaneous

9.1Successors; Assigns

Neither party may assign this Agreement without the prior written consent of the other party, except that either party may, without consent, assign the Agreement to a controlled subsidiary or a purchaser of all or substantially all of that party’s assets used in connection with performing this Agreement.

9.2Insurance

During the Term, Customer shall obtain and maintain: (a) commercial general liability in an amount not less than $1,000,000 per occurrence; (b) professional liability (errors and omissions) insurance in an amount not less than $1,000,000 per occurrence; and (c) privacy and network security (“cyber”) insurance covering loss arising out of or in connection with loss or disclosure of confidential information or PHI, in a minimum amount of $1 million per loss.

9.3Injunctive Relief

It is possible that remedies at law in the event of a breach of this Agreement may be inadequate and, therefore, the parties shall be entitled to equitable relief including, without limitation, injunctive relief, specific performance and other equitable remedies in addition to all other remedies provided herein or available at law or in equity.

9.4Notices

Any notices or other communications required or permitted hereunder shall be in writing and shall be considered to have been duly given when received, if delivered by hand, overnight courier, fax, confirmed e-mail with pdf attachment, or when deposited in the mails for delivery by air mail, postage prepaid. Notices to BreezyBilling should be sent to:

Paul Jonas — BreezyBilling7525 Mitchell Rd, Ste 215
Eden Prairie, MN 55344
Fax: (952) 934-5580
paulj@breezynotes.com

9.5Entire Agreement

This Agreement, together with the Exhibits and Schedules attached hereto and all Order Forms, agreements, documents, and instruments executed in connection with this Agreement, contains all of the terms agreed upon by the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings among the parties and may not be changed or terminated orally.

9.6Paragraph Headings

Paragraph headings herein have been inserted for reference only and shall not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or part, any of the terms or provisions of this Agreement.

9.7Third Parties

Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies on any persons other than the parties hereto and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement.

9.8Subcontracting

BreezyBilling shall have the right to use subcontractors to perform any of its obligations hereunder.

9.9Severability

In the event that any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any provision in every other respect and of the remaining provisions of this Agreement shall not be in any way impaired.

9.10Counterparts

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

9.11Jurisdiction and Venue

This Agreement shall be subject to the exclusive jurisdiction of the courts of Hennepin County, Minnesota. The parties irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement brought in Hennepin County, Minnesota.

9.12Force Majeure

Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, except for payment obligations. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations superimposed after the Effective Date, fire, communication line failures, power failures, earthquakes and other disasters.

9.13Survival

Any sections (or portions thereof) that either expressly by their terms, or in order to give full effect to their provisions must, survive the expiration or termination of this Agreement or any Order Form, shall so survive.

9.14Construction

This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota without regard to its principles of conflicts of laws. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not construe this Agreement against one party more strictly by reason of any rule of interpretation which relates to preparation of a document.

Exhibit A

HIPAA Business Associate Agreement (BAA) & GLBA Compliance

This Exhibit shall apply in the event BreezyBilling provides Services to Customer whereby BreezyBilling shall receive from or create or receive on behalf of Customer Protected Health Information, or BreezyBilling creates, receives, maintains or transmits on behalf of Customer Electronic Protected Health Information (as defined under HIPAA), and/or nonpublic personal information as defined under the Gramm-Leach-Bliley Act (“GLB”), during the performance of its obligations under the Agreement.

Except as otherwise specified herein, BreezyBilling may use or disclose Protected Health Information received from or created or received on behalf of Customer (“PHI”) and nonpublic personal information (“Personal Information”) to perform functions, activities, or services for, or on behalf of, Customer as specified in the Agreement and this Exhibit, provided that such usage or disclosure would not violate HIPAA, GLB or other applicable federal or state privacy and security laws, if done by Customer.

With regard to its use and/or disclosure of PHI or Personal Information, BreezyBilling agrees and warrants that BreezyBilling shall:

not use or further disclose any PHI or Personal Information other than as permitted by the Agreement, this Exhibit or required by law;

at all times maintain and use appropriate safeguards to prevent uses or disclosures of any PHI or Personal Information other than as permitted by the Agreement, this Exhibit or required by law, and implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of electronic protected health information (“EPHI”) that BreezyBilling creates, receives, maintains, or transmits on behalf of Customer;

ensure that any and all subcontractors or agents to whom BreezyBilling provides any PHI or Personal Information agrees in writing to the same conditions and restrictions that apply to BreezyBilling with regard to the PHI or Personal Information; and

ensure that any and all subcontractors or agents to whom BreezyBilling provides EPHI agree in writing to implement reasonable and appropriate safeguards to protect EPHI.

With regard to its use and/or disclosure of PHI, BreezyBilling agrees and warrants that BreezyBilling shall:

report to Customer any use or disclosure of PHI not permitted by this Agreement and any Security Incident (defined in 45 CFR Section 164.304) of which it becomes aware;

mitigate, to the extent practicable, any harmful effect known to BreezyBilling of a use or disclosure of PHI by BreezyBilling in violation of the requirements of this Agreement;

in the time and manner designated by Customer, make available PHI in a Designated Record Set to Customer or, as directed by Customer, to an individual, in order for Customer to respond to individuals’ requests for access to information about them in accordance with HIPAA privacy regulations;

in the time and manner designated by Customer, make any amendments or corrections to the PHI in a Designated Record Set that Customer directs in accordance with HIPAA privacy regulations;

in the time and manner designated by Customer, document such disclosures of PHI and information related to such disclosures as would be required for Customer to respond to a request by an individual for an accounting of disclosures in accordance with HIPAA privacy regulations;

in the time and manner designated by Customer, make available to Customer or, as directed by Customer, to an individual, the information documented in accordance with subsection (e) above, to permit Customer to respond to a request by an individual for an accounting of disclosures; and

in the time and manner designated by Customer or the Secretary of HHS, make its internal practices, books and records relating to the use and disclosure of PHI available to Customer or the Secretary of HHS for purposes of determining Customer’s compliance with HIPAA privacy regulations.

Each term and condition of this Exhibit required by HIPAA and/or GLB shall be effective on the compliance date applicable to Customer or the Effective Date of this Agreement.

Upon the termination or expiration of this Agreement for any reason, BreezyBilling shall return to Customer or destroy all PHI and/or Personal Information and retain no copies in any form whatsoever. This provision shall apply to PHI and/or Personal Information that is in the possession of subcontractors, BreezyBilling or agents of BreezyBilling. If BreezyBilling determines that returning or destroying the PHI and/or Personal Information is infeasible, BreezyBilling will provide Customer notification of the conditions that make return or destruction infeasible and will extend the protections of this Agreement to such PHI and/or Personal Information.

BreezyBilling agrees that this BAA and/or the Agreement or an Order Form may be terminated by Customer upon written notice in the event that Customer determines that BreezyBilling has violated any material term of this Exhibit. Alternatively, Customer may choose to provide BreezyBilling with written notice of the existence of an alleged material breach and afford BreezyBilling an opportunity to cure said breach upon mutually agreeable terms.

Unless otherwise specified in this Agreement, all capitalized terms in this Exhibit not otherwise defined have the meaning established for purposes of Title 45 parts 160 and 164 of the United States Code of Federal Regulations, as amended from time to time.

The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Customer to comply with the requirements of HIPAA, the HIPAA privacy and security regulations, GLB and other federal and state privacy, security and consumer rights laws and regulations applicable to Customer.

This Exhibit A shall survive any termination of the Agreement.

10.

The terms and conditions of this Exhibit A required by HIPAA shall be construed in light of any applicable interpretation of and/or guidance on the HIPAA privacy and security regulations issued by HHS from time to time. Any ambiguity in this Exhibit shall be resolved in favor of a meaning that permits Customer and BreezyBilling to comply with applicable laws and regulations.