Terms and Conditions

MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF ANY PRODUCTS OR SERVICES (THE “SERVICES”).

IF YOU USE A FREE TRIAL OF OUR PRODUCTS OR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR FREE TRIAL.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU", "YOUR", OR “PARTY” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on January 31, 2010. It is effective between You and Us as of the date of You accepting this Agreement.

STANDARD TERMS AND CONDITIONS

1. DEFINITIONS.  Unless otherwise defined in Schedule A, the capitalized terms in this Agreement shall be defined in the context in which they are used.

2. SERVICES; FREE TRIAL; RESTRICTIONS ON USE.

2.1    Application Services.  Subject to the terms and conditions of this Agreement, Accelarad: (i) agrees to  perform the application services described in Schedule B (the “Services”); and (ii) grants to You a limited, non-transferable, non-exclusive license, to access and use the Services via the Internet solely to support Your normal course of business.  You are responsible for: (a) compliance with this Agreement; (b) the accuracy, integrity, and legality of Your images and information; and (c) using commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notifying Us promptly of any such unauthorized access or use; and (d) using the Services only in accordance with applicable laws and government regulations.

2.2    Free Trial.   We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the trial expiration period after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page.  Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR  FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

NOTWITHSTANDING SECTIONS 6 AND 14 (WARRANTIES AND DISCLAIMERS, RESPECTIVELY), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

2.3    Restrictions on Use.  You are responsible for your compliance with this Agreement and shall not: (i) use the Services in a resale capacity or in a service bureau or timesharing environment; (ii) modify, decompile, reverse engineer, disassemble, attempt to discover the source code or algorithms of, or create derivative works based on, any of the Application Services or any part thereof; (iii) disable or circumvent any access control or related device, process or procedure established with respect to the Application Services or any part thereof; (iv) copy, rent, lease, lend, assign, sublicense, transfer, or otherwise make available, the Services or any rights under this Agreement to any Third Party except as expressly permitted by this Agreement; or (v) remove or obscure Accelarad’s or Accelarad’s suppliers’ proprietary rights’ notices. 

In addition, You shall not: (vi) use the Services to transmit or store infringing, libelous, inappropriate, or otherwise unlawful or tortuous information or images; (v) use the Services to transmit or store  information or images in violation of third-party privacy rights, (vi) use the Services to transmit or store Malicious Code; (vii) interfere with or disrupt the integrity or performance of the Services or third-party information contained therein, or (viii) attempt to gain unauthorized access to the Services or their related systems or networks, including impersonating other users or fictitious persons

Accelarad, in its sole discretion, may delete or restrict access to the Services if it determines any of the restrictions on use have been violated.  Accelarad may also delete any information, images or other material associated with an account deemed to be in violation of this Section 2.3.

2.4    Additional Services. Subject to the terms and conditions of this Agreement, Accelarad shall provide the additional services described in Schedule B.

3.    YOUR OBLIGATIONS.  In addition to other obligations under this Agreement:

3.1    You will cooperate with Accelarad in the performance of Accelarad’s obligations hereunder, including without limitation, and in each instance subject to normal security requirements and in a manner that is not unnecessarily disruptive to You or Your business, by: (i) providing to Accelarad such information, data,  management decisions, approvals and acceptances as may be reasonable to permit Accelarad to provide Services hereunder; (ii) providing Accelarad secure, remote access to Your network and/or computing technology, as required; and (iii) abiding with all commercially reasonable security and privacy requests made by Accelarad.

3.2    You acknowledge that, in connection with the testing of new software and equipment that may be incorporated into the Services from time to time and with the performance of any of its obligations hereunder, Accelarad may require the technical assistance and cooperation of You and some or all of your vendors, and You will provide, at no charge to Accelarad, such technical assistance and cooperation as Accelarad may from time to time reasonably request during the Term.

3.3    You acknowledge that Services may be subject to other limitations, such as limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and for Services that enable You to provide public websites, on the number of page views by visitors to those websites.

4.    FEES; PAYMENT TERMS; SUSPENSION OF SERVICES.

4.1    Fees. You agree to pay all amounts due, including any late payment fees, as are specified in an online subscription screen, Schedule C, an Order Form, or in an invoice (collectively, “Fees”).  All Fees are quoted in the United States currency.  You will provide Us with valid and updated credit card information, or with a valid Purchase Order or alternative document reasonably acceptable to Us. If You provide Us credit card information, You authorize Us to charge such credit card for all Services selected or identified in the Order Form for the initial subscription term and any renewal subscription term(s) as set for the in Section 11.  Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable purchase screen or Order Form.  If the Order Form specifies that payment will be a method other than credit card (e.g., Purchase Order), We will invoice You in advance and otherwise in accordance with the relevant subscription terms or Order Form.  Except as otherwise provided in this Agreement, Fees are non-refundable.  Any charges incurred by Accelarad as a result of changes to an Order Form, cancellations or returns by You will be paid by You.  If any authority imposes a duty, tax or similar amount (other than based on Accelarad’s net income), You agree to pay, or to promptly reimburse Accelarad for, all such amounts.   In addition, You agree to pay or promptly reimburse Accelarad for all reasonable travel and other out-of-pocket expenses incurred by Accelarad in the course of performing this Agreement (Accelarad shall generally invoice You on a monthly basis for such expenses).  Accelarad reserves the right to suspend any or all services until overdue accounts are paid in full.

4.2    Fee Modifications.  Accelarad reserves the right to modify the Fees by providing written notice to You.  If You do not object to the Fee modification within ninety (90) days of receipt of notice from Accelarad, such fee modification shall be deemed to be accepted by You.  If You do object to the Fee modification within (90) days of receipt of notice from Accelarad, You shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Accelarad.

4.3    Payment Terms.  The following payment terms shall be applicable with respect to all amounts payable to Accelarad pursuant to this Agreement:
(a)    If elected by You, Accelarad shall charge Client’s credit card on file for all Fees or if You do not have a valid credit card on file, Accelarad shall invoice You for the payment of Fees.  All such amounts shall be due and payable within thirty (30) days after Your receipt of an invoice therefor.
(b)    Late payments are subject to an interest charge, which is the lower of: (i) 1.5% of the outstanding balance per month, or (ii) the maximum legal rate. If any unpaid amounts are referred to collection, You shall reimburse Accelarad for all costs and expenses of collection, including all reasonable attorneys’ fees incurred therefor..

4.4    Suspension of Services.     If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full

5.    OWNERSHIP.  As between the Parties, the Services are, and at all times shall remain, Accelarad’s sole and exclusive property, including all copyrights and other intellectual property rights therein or thereto. You agree that neither You nor any Third Party shall obtain any express or implied rights in or to any part of the Services.  All rights not expressly granted are reserved by Accelarad.
As between Us and You, You exclusively own all rights, title and interest in and to all Your information and images.

6.    WARRANTIES. Accelarad warrants that the Services will operate in substantial conformity with the applicable documentation provided by Accelarad.  For any breach of this warranty, Your sole and exclusive remedy and Accelarad’s sole and exclusive liability, shall be for Accelarad to remedy any reported non-conformity in the Services causing a breach of this warranty and as provided in Section 11 (Term and Termination).

7.    EQUIPMENT NEEDS AND LIMITATIONS. 

7.1    Equipment.  You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services and for paying all Third-Party access charges (e.g., ISP, telecommunications) incurred while using the Services.   Accelarad’s recommendations for the minimum computer equipment needed to access and use the Services are available on Accelarad’s web site at www.seemyradiology.com. 

7.2    Backend Equipment. Accelarad reserves the right to establish a maximum amount of network bandwidth, memory, or other computer storage and a maximum amount of Data that You may store, post or transmit on or through the Services.

8.    CONDUCT.  You shall be solely responsible for Your actions and the actions of Your users while using the Services and the contents of its transmissions through the Services (including, without limitation, Your Data). Client agrees not to knowingly upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services or any computer.

9.    CONFIDENTIALITY; YOUR DATA.

9.1    Confidentiality of Patient Information.  The Parties agree to abide by the terms of the Business Associate Agreement attached as Schedule D (the “Business Associate Agreement”), if applicable or the HIPPA Release attached as Schedule E (the “HIPPA Release”), if applicable.

9.2    Confidential Information.  Accelarad and You each agree to use commercially reasonable efforts to maintain the other’s Confidential Information in confidence and to not use or disclose any portion of the other Party’s Confidential Information to Third Parties, except as reasonably necessary to perform this Agreement and as expressly authorized in this Agreement.

9.3    Your Data.  As between Accelarad and You, You shall own all data, information or material that You enter into the Services or has entered on its behalf ("Your Data"). For purposes of clarity, Your Data does not include Accelarad Data.  Accelarad may access Your account and Your Data from time to time as Accelarad deems necessary, solely for purposes of support, administration and invoicing related to Your use of the Services.  Except as permitted in this Agreement, Accelarad will not edit, delete or disclose the contents of Your Data unless authorized by You or unless Accelarad is required to do so by law or in the good faith belief that such action is necessary to: (i) conform with applicable laws or comply with legal process served on Accelarad; (ii) protect and defend the rights or property of Accelarad; or (iii) enforce this Agreement. Accelarad may provide user statistical information related to the usage of the Services such as usage or traffic patterns in aggregate form to Third Parties, but such information will not include identifiable information of You or personally identifying information for Your employees or authorized contractors.

9.4    Transition of Your Data.  Upon termination or expiration of this Agreement and for up to forty five (45) days from the effective date of such termination or expiration (the "Transition Period"), You will be entitled to receive from Accelarad services necessary to enable You to obtain from another vendor, or to provide for itself, services to substitute for or replace the archiving services provided by Accelarad under this Agreement.  During such Transition Period, Accelarad will make available services necessary for an orderly and seamless transition of the Your Data to You or a Third Party solution.  Any transition services or other related services from Accelarad will be provided by Accelarad at Accelarad’s then current service rates.  This Section 9.4 summarizes Accelarad’s entire obligation and responsibility to maintain the Your Data following termination or expiration of this Agreement.  At the earliest of forty five (45) days and when You Data has been provided to You, Accelarad shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

10.    REQUIRED CONSENTS.  You shall promptly obtain and provide to Accelarad any Required Consents reasonably necessary or appropriate for Accelarad to provide the Services, and acknowledge that Services may not be made available to You should these Consents not be provided in a valid or timely manner. You also grant to Accelarad a non-exclusive, worldwide right and license to use, adapt, display, perform and distribute the Your Data so that Accelarad may fully perform the Services and this Agreement under any applicable Business Associate Agreement or HIPPA Release.

11.    TERM AND TERMINATION.

11.1    Term.  This Agreement shall begin as of the Effective Date and shall remain in full force and effect for a subscription period as defined by the selected Services specified in Schedule B (“Services) or an approved Order Form from the Effective Date, unless terminated in accordance with its terms (the “Initial Term”).  After the Initial Term, this Agreement shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), each a “Renewal Term” (the Initial Term together with any Renewal Term, the “Term”), unless either Party provides the other Party with notice of non-renewal at least thirty (30) days prior to the end of the then-current Term. 

The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.  Any such pricing increase shall not exceed five percent (5%) over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

11.2    Termination Upon an Event of Default.  Either Party may terminate this Agreement or, as applicable, an Order Form upon thirty (30) days prior written notice if the other Party materially breaches a material term of this Agreement (or, as applicable, an Order Form) and does not cure such breach within thirty (30) days following receipt of notice specifying the breach (in which case the Agreement or, as applicable, the Order Form, shall terminate at the end of such period); provided, however, that Accelarad may terminate this Agreement (in whole or in part) in a shorter period of time, or suspend or otherwise restrict access to any of the Services, if Accelarad determines that such action is reasonably necessary to avoid liability, to prevent disruptions to services provided to other Accelarad clients, or to prevent a service interruption from the service provider(s) that provide Internet connectivity and other services to Accelarad. 

11.3    Effect of Termination.  Upon any termination or expiration of this Agreement for any reason: (i) Accelarad shall be relieved of any obligations to provide Services (except for transition services elected by Client in accordance with Section 9.4) or make any shipments of Hardware and may cancel all outstanding Order Forms, regardless of previous acceptance by Accelarad of such Order Forms; (ii) You shall promptly pay all amounts accrued or otherwise owing to Accelarad as of the effective date of such termination or expiration; (iii) all outstanding invoices to You and other amounts due to Accelarad from You shall become immediately due and payable; and (iv) Accelarad shall have no liability to You or any Third Party due to termination or expiration of this Agreement.

12.    INDEMNIFICATION.

12.1    Patents and Copyrights.  If an unaffiliated Third Party claims that any of the Services or Your Data infringe that party’s patents or copyrights, Accelarad will, at Accelarad’s expense, defend You against that claim and pay all costs, losses, damages, and attorneys’ fees that a court finally awards, and all associated settlements.  If such a claim is made or appears likely to be made, You agree to permit Accelarad to enable You to continue to use the affected Services, or to modify them to make them non-infringing, or to replace them with another service that is substantially a functional equivalent.  If Accelarad determines that none of these options is reasonably available, then Accelarad may terminate this Agreement in whole or with respect to the affected Services and no further payment shall be due from the You therefor.  THIS IS ACCELARAD’S ENTIRE OBLIGATION AND LIABILITY REGARDING INFRINGEMENT OR CLAIMS OF INFRINGEMENT. Accelarad will have no responsibility for (i) any use of the Services or any deliverable thereof after Accelarad has notified You to discontinue use, or (ii) alteration or combination of the Service or a deliverable with any of Your or Third Party materials, or any misuse or unauthorized use.

12.2    Your Indemnity. You will, at its expense, defend Accelarad against all claims by unaffiliated Third Parties arising from or related to the Your Data or Your use or misuse of the Services, and You shall pay costs, losses, damages, and attorneys’ fees that a court finally awards, and all associated settlements.

12.3    Indemnification Procedure. The indemnification obligations under Sections 12.1 and 12.2 are conditioned on the indemnifying Party receiving (i) prompt written notice of the claim, (ii) the necessary assistance, information and authority to defend the claim and perform its obligations, and (iii) sole control of the defense and settlement of such claim and all associated negotiations.  This Section 12 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

13.    LIMITATION OF LIABILITY. Except for the gross negligence of Accelarad, in no event will Accelarad’s total, aggregate liability arising from or related to this Agreement (including for strict liability, breach of contract, misrepresentation, and other contract or tort claims) exceed the amount of direct damages actually incurred by You, up to the amount of Fees paid to Accelarad for the specific Services under which the damages arose during the six (6) months immediately preceding the earliest event giving rise to the damages. EXCEPT FOR THE GROSS NEGLIGENCE OF ACCELARAD, UNDER NO CIRCUMSTANCES SHALL ACCELARAD OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (i) THIRD PARTY CLAIMS OTHER THAN THOSE IDENTIFIED IN SECTION 12.1, (ii) LOSS OR DAMAGE TO ANY RECORDS OR DATA, OR (iii) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.    DISCLAIMER.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ACCELARAD MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION, CAPACITY, SPEED, FUNCTIONALITY, QUALIFICATIONS OR CAPABILITIES OF THE SERVICES OR ANY GOODS OR PERSONNEL RESOURCES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.  ACCELARAD DOES NOT WARRANT ANY PARTICULAR RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SERVICES OR THAT THE SERVICES OR ASSOCIATED SYSTEMS WILL OPERATE IN AN ERROR-FREE OR UNINTERRUPTED MANNER, OR IN COMBINATION WITH THIRD PARTY PRODUCTS. 

15.    MISCELLANEOUS.

15.1    Assignment.  You may not assign, transfer, or sell any of its rights or delegate any of its responsibilities under this Agreement, without Accelarad’s prior written consent.  Any purported assignment of rights or delegation of performance in violation of this Section 15.1 is void.  Accelarad shall use commercially reasonable efforts to notify You promptly in writing of any assignment by it of this Agreement.  This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.  In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

15.2    Force Majeure.  Neither Party shall be liable for any delay or failure due to force majeure and other causes beyond its control, including for acts of God, labor disputes, changes in government policy/law, war, epidemics, acts or omissions of vendors or suppliers, disruptions caused by failures of the Internet or service providers (including those providing electricity, telecommunications links and/or Internet connectivity), or other occurrences which are beyond its reasonable control.  This provision shall not apply to any of Your payment obligations.  In the event that either Party is excused from the performance of its obligations hereunder pursuant to this Section 15.2, then that Party shall use all efforts that are reasonable under the circumstances to resume performance of its obligations hereunder as soon as feasible. 

15.3    Compliance with Laws.  The Services are provided solely for lawful purposes and use.  Without limiting the other terms of this Agreement, You shall be solely responsible for, and agree to comply with, all laws, statutes, ordinances and/or regulations (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) (collectively, “Laws”) applicable to You and Your business and its use of the Services.   You will not directly or indirectly ship, transfer, export or transmit the Services into any country or permit or authorize use by any Person in any manner prohibited by the United States Export Administration Act, the International Traffic in Arms Regulations of the U.S. State Department, or any other export laws, restrictions, or regulations of any jurisdiction.  The Parties agree that Accelarad may in its sole discretion make changes to any of the Services from time to time as may be reasonably necessary or appropriate for Accelarad to comply with applicable Laws.  The Parties further agree that if a change in applicable Laws makes the continued performance of this Agreement (or any part thereof), in Accelarad’s sole reasonable discretion, unduly burdensome or unlawful, Accelarad may terminate this Agreement in whole or in part upon notice to Client. 

15.4    Entire Agreement.  This Agreement, including the schedules and exhibits hereto, executed Order Forms and invoices each of which is incorporated herein for all purposes, constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof, superseding any prior oral or written communications.  Sections 4 (FEES; PAYMENT TERMS; SUSPENSION OF SERVICES), 5 (OWNERSHIP), 9 (CONFIDENTIALITY; YOUR DATA) , 10 (REQUIRED CONSENTS), 11.3 (EFFECT OF TERMINATION), 12 (INDEMNIFICATION), 13 (LIMITATION OF LIABILITY), 14 (DISCLAIMER), and 15 (MISCELLANEOUS) shall survive the termination or expiration of this Agreement. The Parties are independent contractors for all purposes under this Agreement.

15.5    Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE ENFORCED AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.  Any dispute arising out of or related to this Agreement shall be resolved only in the state or federal courts having jurisdiction in Atlanta, Georgia.

15.6    Further Assurances.  During and after the Term, You agrees, at Accelarad’s request and reasonable expense, to provide reasonable assistance and cooperation to Accelarad and its designees, and to give testimony and execute documents and to take such further acts reasonably requested by Accelarad to acquire, transfer, maintain, perfect, and enforce Accelarad’s intellectual property rights as described in this Agreement.

15.7    Amendments and Waivers.  No amendment to this Agreement shall be valid unless it is in writing and is signed by each of the Parties.  The terms of this Agreement may be waived only by a written instrument signed by each of the Parties.  Except where a specific period for action or inaction is provided herein, no delay on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof.  No waiver on the part of either Party of any such right, power or privilege shall preclude any further exercise thereof or the exercise of any other such right, power or privilege.

15.8    Notices.  All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given (i) when received, if delivered personally, (ii) on the next business day, if sent by overnight service prepaid with instructions for next business day delivery (receipt confirmed), or (iii) on the day of transmission, if sent via facsimile (transmission confirmed) during the receiving Party’s normal business hours, or on the next business day if sent pursuant to this subsection (iii) after the receiving Party’s normal business hours, in each case to the applicable Party at the address and number set forth in this Agreement (or to such other address and number as that Party may have then previously specified by notice given to the other Party pursuant to this provision).  All notices should be addressed to:
Vice President, Legal
Neurostar Solutions, Inc. dba Accelarad
6 Concourse Parkway, NE
Suite 1625
Atlanta, GA  30328

15.9    Severability.  If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law; the remainder of this Agreement shall remain in full force and effect.

15.10    Counterparts; Facsimile.  This Agreement may be executed in multiple counterparts or by facsimile, each of which shall be an original and all of which shall together constitute one and the same instrument.

 
Schedule A
Definitions
The following terms shall have the respective meanings set forth below:

“Confidential Information” means non-public information that a Party provides and reasonably consider to be of a confidential, proprietary or trade secret nature, including but not limited to the Services, as well as Your Data and Accelarad’s (and Accelarad’s licensors’) marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures, and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information shall not include Non-Confidential Information.

“Accelarad Data” means, collectively, content, data, images, and other materials collected or provided by Accelarad or Third Parties acting on behalf of Accelarad.

“Non-Confidential Information” means information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving party; (ii) can be demonstrated by credible evidence: (x) as rightfully known to the receiving party prior to the time of its disclosure, or (y) to have been independently developed by the receiving party; (iii) is subsequently learned from a Third Party not under a confidentiality obligation to the disclosing party; or (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving party has provided prompt written notice and assistance to the disclosing party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy to protect against disclosure.

“Order Form” means a Accelarad order form by which You order Services.  To the extent there is a conflict between the terms of this Agreement and any Order Form, the terms of this Agreement shall prevail. Each Order Form shall only be effective if executed by Accelarad’s duly authorized representative, either in writing or electronically.  Upon such execution, each Order Form shall be deemed to be incorporated into this Agreement as sequentially numbered exhibits.  Any non- Accelarad purchase orders or similar forms used by You hereunder shall be solely for Your convenience; all additional or conflicting terms therein shall be deemed to be void and of no effect.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful code, files, scripts, agents or programs.
"Person" means any individual, corporation, partnership, firm, joint venture, association, joint stock company, trust, estate, unincorporated organization, governmental or regulatory body or other entity.

“Required Consents” means any consents, licenses or approvals required to give Accelarad the right or license to use Your Data or any Third Party Products or other materials in the manner contemplated by this Agreement, without infringing on the rights of the providers, licensors, or owners of such materials.

“Services” means, collectively, the services Accelarad provides, subject to the terms and conditions of this Agreement, the applicable Order Form(s), and Accelarad’s applicable standard policies and procedures in effect, at time services are ordered.

“Third Party” means a Person other than You or Accelarad.

“Third Party Products” means, collectively, any non-Accelarad software, or other Third Party products or services.

"User Guide" means the online user guide for the Services, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the free trial period.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means the company Neurostar Solutions, Inc. dba Accelarad.
"You" or "Your" means the individual, company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
 "Your Data" means all electronic data, images,  or information submitted by You to the Services.
 
Schedule B
Services

I.    Services

Image Distribution

• Use of online uploader or gateway (if applicable)
• Secure, efficient & reliable image communications over LAN and the Internet
• Patient and study quality control and data scanning tools
• Image sharing and online request for image sharing
• Online study access and downloading to PC hard drive or CD
• Full feature diagnostic web based image viewing
• Mobile device access to studies
• Online report access
• Short-term storage of images up to 30 days

Long-term Archiving (Optional)

• Always available, always online archiving of studies for the term of the subscription
• Built-in disaster recovery

Disaster Recovery (Optional)

• Off-site, online copy of imaging studies for retrieval in case of data loss

Reporting (Optional)

• Digital dictation and integrated voice recognition options (Third Party fees will apply)
• Web based transcription tools including custom report templates
• Access to dictated (audio) and transcribed (text) reports via web

Result Distribution (Optional)

• Automated email or electronic faxing of reports
• Web portal for referring physicians for clinical image review

HIS/RIS/EMR Interface (Optional)

• Interface to a single HIS/RIS or EMR application based on Accelarad’s published specifications

III.    Maintenance and Support Services

Accelarad shall provide to You telephone access to Accelarad’s help desk for the purpose of reporting support issues. Accelarad’s help desk is available 24x7x365 to report critical support issues as defined below. Accelarad’s help desk is available during normal business hours (8:00 a.m. to 5 p.m. Eastern Standard Time, Monday through Friday excluding holidays) to report all other support issues.

Critical issues: Production problems have occurred where one or more processes or programs have experienced abnormal termination and these problems must be resolved before You can continue with normal business operations.  Accelarad will use commercially reasonable efforts to respond to critical issues within thirty (30) minutes.

Serious issues: Production problems have occurred that (1) do not inhibit operations but impede its regular flow; or (2) have temporary solutions available while permanent solutions are found and implemented. Accelarad will use commercially reasonable efforts to respond to serious issues within two (2) business hours. 

Moderate issues: Production problems have occurred where: (1) specific functions do not conform to the User Guide; (2) specific transaction scenarios give invalid or unexpected results; or (3) configuration does not conform to the defined environment. Accelarad will use commercially reasonable efforts to respond to moderate issues in six (6) business hours.

Minor issues: Cosmetic production system problems. Accelarad will use commercially reasonable efforts to respond to minor issues within two (2) business days.

The Services are configured to handle most support issues on a remote basis except under catastrophic failure conditions.  Such conditions are typically the result of hardware, telecommunications or third party equipment failure, which is outside Accelarad’s responsibility hereunder. You expressly acknowledge that nothing in this Agreement shall oblige Accelarad to provide onsite services under such conditions or support hardware or software not manufactured by Accelarad (unless expressly set forth in an Order Form).
 

Schedule C
Fees

This Schedule C represents Accelarad’s current Fee structure and may be changed from time to time as specified in Section 4.2. 

If You require installation, training or other services, in addition to those specified in the Order Form, current prices are available from an Accelarad account manager.