MEDICAL OFFICE ONLINE

MASTER SERVICES AGREEMENT

Revised May 10, 2006                            

BEFORE USING THE SOFTWARE AND WEB SERVICES, YOU MUST FIRST READ AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACCOMPANYING HIPAA ASSOCIATES AGREEMENTS BY CLICKING THE "I ACCEPT" BUTTON OR SIGNING BELOW.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE AND/OR WEB SERVICES.

1. OVERVIEW

1.1  General.      This Agreement, including the attachments and/or exhibits which are incorporated herein, states the terms and conditions by which Medical Office Online (MOO) will provide and Customer will receive and pay for Medical Office Online web-based software and services.

1.2 Definitions.

"Customer"	means the health care provider entering into this Agreement.  It also includes its employees, agents,  subcontractors, and any related healthcare professionals who provide treatment to patients whose medical records are stored in the MOO Data Facilities.
“Full-time Provider”	means a medical practitioner who works three or more days per week seeing patients or billing for services, at their office, a hospital, or any other location.
“Part-time Provider”	means a medical practitioner who works two days or less per week, seeing patients or billing for services, at their office, a hospital, or any other location
“Service(s)”	means the services provided by MOO as described both in this Agreement, and in Customer's Subscription Process (SP) at the public MOO website.  More specifically, it means the electronic access to and storage of patient medical records or Patient Data, the electronic access to and storage of Practice Data, and the electronic integration with the Customer's business systems and functions.
“Initial Term”	means the minimum term for which MOO will provide the Service(s) to Customer, as indicated in the initial Subscription Process at the public MOO website.
“Renewal Term”	means any Service term following the Initial Term, as specified in Section 2.2.
“Subscription Process”	means the detailed description of the MOO Service to be provided, and its pricing, as detailed on the MOO website, and in the steps of completing the sign up process on the MOO website.
"Derivative Work(s)"	means a revision, modification, translation, abridgment, condensation or expansion of a work or a portion thereof, including Patient Data or Practice Data, in which the work may be recast, transformed or adapted in accordance with the license grants herein, which, if prepared without the consent of the owner of the copyright therein, would be a copyright infringement as interpreted applying US law.
"End User"	means a person who has been authorized by a patient, through a patient or general release, to access Patient Data, or a person who has been authorized by a Provider to access Practice Data, and is licensed pursuant to this Agreement.
“User License"	means the legal agreement and permission by which any individual person is allowed access to the MOO software and its operating platform.
"MOO Technology"	means the Software, operating platform, MOO Web Site, and other technology used to access, retrieve, and republish, with full security and authorization features, Patient Data or Practice Data, including, but not limited to, user interfaces, MOO Data Facilities, website infrastructure technology, content, documentation, and associated designs and product plans.
"MOO Data Facilities"	means the data storage machines, servers, software and related equipment owned by MOO and located at MOO's premises or any additional sites where equipment is hosted by a third party.
"MOO Web Sites"	means MOO's designated web sites, including but not limited to medicalofficeonline.com, or its successor web sites, and other electronic user interfaces and mediums used to display or transfer Patient Data or Practice Data.
"Patient Data"	means the electronic patient record, and associated information including, but not limited to diagnosis, treatment, lab results, prescriptions, history, Provider name and claims and billing information, that may be stored in the MOO Data Facilities.
"Practice Data"	means the electronic practice records, and associated information including but not limited to Provider name, general ledger, claims/ billing information, prescription processing, laboratory interfaces, secondary healthcare Providers or their organizations, schedules, and general healthcare information databases that may be stored in the MOO Data Facilities.
“New Practice”	means any practice with fewer than 200 active (having been seen within the last year) charts.
“Established Practice”	means any practice with more than 200 active (having been seen within the last year) charts.
"Software"	means the MOO Medical electronic medical record software or electronic Practice Management software distributed by MOO and its authorized distributors and resellers and used by Customer in accordance with the terms of this Agreement.  It includes all features of the software, including but not limited to the Scheduler, the Electronic Medical Record, and the Billing and Receivable package.
“Credit Card Account”	means an available MasterCard, American Express or Visa account that allows MOO to post and collect charges for the service.

2. TERMS

2.1  Term.  The term of this Agreement begins when the Subscription Process (SP) at the public MOO website is completed by the Customer.  The date filled out will be the Commencement Date.  The term of this Agreement is for twelve (12) months.

2.2  Renewal Term(s).  This Agreement will be automatically renewed for additional one (1) year terms (“Renewal Terms”), unless otherwise agreed to in writing by the Parties, or terminated upon written notice by either party, subject to MOO’s then-current termination provisions.

2.3  Modification.  The MEDICAL OFFICES ONLINE MASTER SERVICES AGREEMENT can and will be modified by MOO from time to time.  Changes in the Agreement will be posted on the Medical Office Online Public Web Site www.medicalofficeonline.com and/or to your MOO database.  Notification of significant changes in your rights, duties and responsibilities will be in accordance with the provisions in Section 9.8.  All of such changes will be binding upon customer after such posting or notification.

2.4  Fees and Pricing.  The SP documents completed by the Customer on the Customers commencement date will determine the Provider, User, and other pricing for the first twelve months, except under extreme circumstances.  MOO reserves the right to change the charges for our service from time to time.

2.5  Provider/User Count.  Customer agrees to maintain a correct and accurate count of Providers and Users, as defined in this agreement, and as indicated on the Account Services section of their MOO Software.  MOO reserves the right to change the fees paid by a Customer, based on observed and actual usage of the software.  Provider and User count changes must be made on a timely basis.  (Retroactive charges, penalties and fees may apply.)

2.6  User License Agreement.   User licenses will be required for all individuals accessing the MOO Software.  A User License is included with each Provider Fee (Full or Part Time).  A User License is also required for every other non-provider requiring access to the system.

2.7  Promotional Pricing.  MOO reserves the right to offer specials or promotional pricing that only applies to new Subscribers.  Details of such specials or promotions will be posted on our public web site, and may be withdrawn at any time without notice.

2.8  Promotional Special Pricing Sunset.  All promotional pricing or special discounts will expire in six months, unless specifically agreed upon in writing.

2.9  Governmental Requirements Fees.  The field of electronic medical records and related information technology is rapidly evolving.  Expected or unexpected governmental requirements may require a special funding event, in the form of an assessment fee to each Customer.  Fees will be used only to bring the software into compliance with developing governmental regulations.  Such an event will require special notice.

2.10  Prepayment Discount.  Based on company or institutional purchasing requirements, and with prior approval by MOO, a Customer may elect to pay for one year of MOO service in advance.  Customer agrees that full payment will be made within 30 days of the date of the Invoice.  A Prepayment Discount of 10% may be taken for all invoices paid within the 30 days.  The Prepayment Discount will be reduced by 1% if payment is not made within 30 days.  The prepayment discount will be reduced an additional 1% per month, for each month the invoice remains unpaid.

2.11  View Only Service Fee.  If a Customer leaves the MOO service, but wishes to retain non-edit, view-only Internet access to the records already on the MOO service, the fee will be 20% of the then current MOO monthly Full-time Provider Fee.  This fee may change from time-to-time as the Full-time Provider Fee changes.

2.12  Independent Patient Access.  If a Customer leaves the MOO service, but one or more of that Customer’s patients wish to pay for independent access to their medical records, the fee for this access for each patient, will be 5% of the MOO monthly Full-time Provider Fee.  This fee may change from time-to-time as the Full-time Provider Fee changes.   Although it is our intent to maintain this independent access indefinitely, no guaranty can be made.

2.13  MOO Service.  The MOO service includes Internet access via any web-enabled computer (using Microsoft’s Internet Explorer 6.0 browser) to the customers’ unique database at a secure hosting site with appropriate security and access controls.  No specific up time,  availability, or system performance is guaranteed.

3. FEES AND PAYMENT TERMS

3.1  Customers of Third Party Vendors.  In the event that customer obtains MOO services not directly from MOO but through a third party vendor, customer shall pay all fees due in accordance with customer’s agreement with said vendor, except MOO fees.  MOO fees shall be paid in accordance with sections set forth below.

3.2  Fees.  Customer will pay all fees due according to the prices and terms listed in the online Subscription Process and elsewhere in this Agreement. 

3.3  Credit Card Account.  You must have an acceptable Credit Card Account (Mastercard, Visa, or American Express) for paying for your MOO Services.  Setting up the Account requires current, complete and accurate information, including credit card number, credit card expiration date, billing address, verification number, and others authorized to charge or make changes on your Account. 

3.3.a  You are responsible for all charges that are made to your Account.  MOO is not responsible for any loss that may incur as a result of any unauthorized person using your Account.  You must promptly notify MOO if the credit card you have designated for use in connection with the Account is canceled (e.g., for loss or theft), if it has a new expiration date, or if you become aware of a potential breach of security concerning your Account.  Upon proper notice, MOO may suspend or terminate MOO Services, if an active, usable Account is not provided.

3.3.b  By accepting this Agreement, you warrant that you are over the age of 18, you possess a valid credit card, and you are responsible and agree to pay MOO for all charges incurred by you or your office representatives under the Account.  All amounts are payable in U.S. Dollars unless otherwise specified.  Stated prices exclude all applicable taxes, shipping, handling and telecommunications charges and any other charges unless otherwise specified. The charges for this Account will appear on your credit card statement as "Medical Office Online Billing". MOO may accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and MOO may delay billing you until all charges have been accumulated for that billing cycle. If you order a fee-based service that will be charged on a periodic basis (e.g., a monthly subscription), you agree that MOO may submit all charges to your designated credit card issuer on such periodic basis without further authorization from you, until you provide prior notice that you have terminated this authorization or wish to change your designated card.  You are responsible for paying all costs incurred in the collection (without or without suit) of any delinquent amounts due, including expenses, reasonable attorneys’ fees and additional costs incurred if Customer declares bankruptcy.

3.3.c  Termination, cancellation, or suspension of your Account will not alter your obligation to pay all charges made to your Account before termination, cancellation or suspension.  This includes all charges made after termination by you, but before the termination notice from you reasonably could be implemented by MOO in the ordinary course of business.  If your credit card company rejects the MOO charges or direct debit, you will be considered in default and MOO may suspend or cancel your Service.  You will not be entitled to any refunds upon termination, cancellation or suspension unless otherwise stated.

3.3.d  Unless you notify MOO of any discrepancies or irregularities within one hundred and twenty (120) days after they first appear in your Credit Card Statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card account holder. TO THE EXTENT ALLOWED BY LAW, YOU RELEASE MOO FROM ANY AND ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR OR DISCREPANCY THAT IS NOT REPORTED TO MOO WITHIN ONE HUNDRED AND TWENTY (120) DAYS OF THE DATE THE ERROR FIRST APPEARS ON YOUR ONLINE BILLING STATEMENT.  The availability of all MOO products, services and items, is subject to availability and acceptance of your order by MOO and we reserve the right to correct any errors or mistakes that we make even if we have already requested or received payment.

3.3.e  You agree not to assign, transfer or sublicense any rights in your Service.

3.4  Payment Terms.  Customer’s initial invoice may include non-recurring charges indicated in the SP completed by the Customer on the Customers Commencement Date.  Unless stated otherwise, monthly recurring charges will commence on the first day of the following month, and will continue be billed to your credit card monthly in advance of the provision of Services.  Unless established otherwise, all other charges for Services initiated during a month, will commence with the next month’s monthly recurring charge.  All payments will be made in the United States in U.S. dollars. All payments will be done electronically, usually through MasterCard, American Express or Visa services.  MOO reserves the right to modify any billing, including back billing to the extent permissible by applicable law, to reflect corrections or adjustments for billed services.  In the event a paper invoice is sent, it will be DUE IMMEDIATELY UPON RECEIPT.

3.5  Late Payments.  In the event a Customer’s Credit Card is declined or has expired, MOO will contact Customer.  Customer agrees to immediately provide a current, valid Credit Card Account number or make other provisions for immediate payment.  If payment is not received within fifteen days of the due date, MOO may, at its discretion, charge a penalty fee plus interest calculated at the rate of 1½% per month, retroactive to the due date.  If a Customer misses a second payment, and owes for two month’s MOO Service, Customer will be given written notice that they must bring their account current within five (5) days of the Effective Date of Notice. (See Section 9.8).  If said Customer fails to bring their account current by the end of the five day period, MOO may at its sole discretion, modify, suspend or terminate Customer’s MOO Service.  In addition, prior to resumption of MOO services, MOO may modify the payment terms to require an additional advance payment or other similar arrangements to secure Customer’s payment obligations under this Agreement. 

3.6  Taxes.  All fees charged by MOO for Services are exclusive of all taxes.  If applicable, Customer will be responsible for, and will pay in full, all federal, state, and local, sales, use, excise, gross receipts, and similar taxes, and all fees now in force or enacted in the future that are imposed on or with respect to the products and/or Services provided under this Agreement or the SP documents completed by the Customer on the Customers commencement date, including those taxes and fees imposed on MOO, but excluding taxes based on MOO’s net income.  Customer shall reimburse MOO for the amount of any such taxes or fees which MOO is required to pay or collect for Services. To the extent that Customer claims that a sale is eligible for the resale tax exemption, Customer shall furnish MOO with a proper resale exemption certificate as authorized or required by statute or regulation by the jurisdiction providing tax exemption.  No exemption will be allowed to Customer unless and until valid certificate is provided.

4. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS

4.1  Confidential Information.

4.1.a  Nondisclosure of Confidential Information. Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”).  Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of disclosure, reasonably should be considered confidential.  Confidential information will also include, but not be limited to, MOO developed technology, Customer developed technology, and these terms and conditions.  Each party agrees that it will not use in any way, for its own account or account of any third party, except as expressly permitted by, or required to achieve the purpose of this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information, and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information.

4.1.b  Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party; (ii) becomes known independently of disclosure by the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.  The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure.

4.2  Intellectual Property

4.2.a  Ownership. Except for the rights expressly granted herein and the assignment expressly made in paragraph 4.3(a), this Agreement does not transfer from MOO to Customer any MOO developed technology, and all right, title and interest in and to such technology will remain solely with MOO.  Except for the rights expressly granted herein, this Agreement does not transfer from Customer to MOO any Customer developed technology, and all right, title and interest in and to such technology will remain solely with the Customer.  MOO and Customer each agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party.

4.2.b  Title. Title, ownership rights, and intellectual property rights in and to the MOO Technology whether in machine-readable or printed form, and including without limitation Derivative Works, compilations, or collective works thereof and all related technical know-how and all rights therein are and shall remain the exclusive property of MOO or its suppliers. Subject to Customer's and End User's rights in the Patient Data, MOO shall own all Derivative Works created under Section 2. If suggestions made by Customer are incorporated into subsequent versions of the MOO Technology, Customer hereby assigns to MOO, at no cost, all rights of ownership Customer may have, to any suggestions, concepts, or improvements concerning the MOO Technology, that Customer communicates to MOO. This Agreement does not include the right to sublicense the Software or Service and is personal to Customer and therefore may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of MOO. Customer acknowledges that the Software in source code form, or Service in any form, remains a confidential trade secret of MOO and/or its suppliers. Customer shall not take any action to jeopardize, limit or interfere in any manner with MOO's ownership of or rights with respect to the MOO Technology, Software, and Service. Customer acknowledges MOO's ownership of all copyright, trademarks, patent, and other intellectual property associated with the MOO Technology and will do nothing to interfere with such rights. Except for the rights expressly granted to Customer hereunder, MOO reserves for itself all other rights in and to the Medical Office Online Technology. Further, Customer shall not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels appearing on, and shall reproduce such notices on all copies of the MOO Technology, Software, Service, and content.

4.2.c  General Skills and Knowledge.  Notwithstanding anything to the contrary in this Agreement, MOO will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of MOO.

4.2.d  Reverse Engineer.  Customer agrees not to attempt to decipher, decompile, disassemble or reverse engineer the Software or Service or allow others to do so. Customer further agrees not to modify or create derivative works of the Software or Service. Customer shall not grant rights to any third party to reproduce, implement, modify, translate, or reverse engineer the MOO Technology, or otherwise determine or attempt to determine source code for the MOO Technology or to create Derivative Works thereof without MOO's written authorization.

4.2.e  Presentations to any Entity with Information Technology Capacity.  Customer agrees not to present or demo their database or allow access to their database by any outside entities, including billing services, EDI services, practice consultants, computer programming services, or financial investors without MOO's written authorization.

4.2.f  Templates created inside your database.  Customer agrees that any templates, medication lists, provider lists, CPT/ICD9 lists or any other Configuration setup information created for their MOO database are the property of MOO and may be used by other customers with similar or identical need for such setup data or templates.

4.3 License Grants

4.3.a  MOO Software.  MOO hereby grants to Customer a nonexclusive, nontransferable license, during the term of this Agreement, to use the MOO developed technology solely for purposes of using the Service(s).  Customer shall have no right to use such technology for any purpose other than using the Service(s).

4.3.b  Technology Rights.  To the extent that Customer or its employees or contractors participates in the creation or development of technology, Customer, on behalf of itself and its employees and contractors, hereby assigns to MOO all right, title and interest, including all intellectual property rights, in the technology.

4.3.c  Other  Uses of Service.  Customer shall not lend, rent, lease, loan, resell for profit, use in a time sharing or service bureau arrangement, or distribute the Software or Service or use it in a client/server network, thereby providing multiple users access to the Software or Service, or otherwise transfer the Software or Service in whole or in part, except as expressly provided for in this Agreement.

5. MOO REPRESENTATIONS AND WARRANTIES

5.1  Authority and Performance of MOO.  MOO represents and warrants that it has the legal right to enter into this Agreement and perform its obligations hereunder. In the event of a breach of the warranties set forth in this paragraph, Customer’s sole remedy shall be termination pursuant to Section 8 of this Agreement.

5.2  Disclaimer of Actions Caused by and/or Under the Control of Third Parties.  MOO does not and cannot control the flow of data to and from the Internet network.  Such flow depends in large part on the performance of Internet services provided or controlled by third parties.  At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof).  Although MOO will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, MOO cannot guarantee that such events will not occur.  Accordingly, MOO disclaims any and all liability resulting from or related to such events.

5.3  Security.  MOO shall implement appropriate security and authorization procedures as may be necessary to enable End Users and Customer to electronically view, access, and use the Patient Data or Practice Data through the MOO Web Sites.

5.4  WARRANTY DISCLAIMER.  MOO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MOO, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL CREATE ANY WARRANTIES. THE PATIENT DATA, PRACTICE DATA, SERVICES AND MOO TECHNOLOGY ARE PROVIDED ON AN "AS-IS" BASIS.

5.5  LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL MOO OR ITS SUPPLIERS OR AGENTS, OFFICERS, EMPLOYEES, PRINCIPALS, DIRECTORS OR SUBSIDIARIES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DAMAGES OF ANY KIND ARISING OUT OF MOO'S DELIVERY OF OR FAILURE TO DELIVER THE SERVICES, THE USE OR INABILITY TO USE THE SOFTWARE, MOO TECHNOLOGY OR SERVICES OR ANY DATA SUPPLIED THEREWITH, OR FOR THEFT OF OR UNAUTHORIZED ACCESS TO PATIENT DATA, OR OTHERWISE OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THEY ARE DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, INTERNET INACCESSIBILITY OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF MOO SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS LIMITATION OF LIABILITY SHALL APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY.

5.6  LIMITATION OF LIABILITY CONTINUED.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL MOO OR ITS SUPPLIERS OR AGENTS, OFFICERS, EMPLOYEES, PRINCIPALS, DIRECTORS OR SUBSIDIARIES BE LIABLE TO PATIENTS, INSURANCE COMPANIES, OUR CUSTOMER (S) OR ANY OTHER PERSON OR LEGAL ENTITIES, EITHER LOCAL, STATE, NATIONAL OR INTERNATIONAL GOVERNMENTAL REGULATORY BODIES FOR ANY DAMAGES OF ANY KIND ARISING OUT OF A MOO CUSTOMER’S FRAUDULENT BILLING PRACTICES, INTENTIONAL OR UNINTENTIONAL.

5.7  Customer Training.  We are committed to the expeditious setup and training of Customers on the MOO service.  MOO’s training obligation is to train a “lead trainer” who will train the rest of the Customer’s staff.  MOO training requires independent study in advance of MOO live training, and scheduling of such live training is contingent upon Customer meeting their prerequisite study.

5.8  Customer Training Limitations.  MOO customer training is limited to our software. MOO training does not include training Customer staff on use of their PC, the Internet Explorer browser, or the art of medical coding and billing.

5.9  Customer Training Limits Of Liability.  MOO is not liable for any damages resulting from clinical care or financial errors made as a result of particular, general or specific examples given during the training.  At all times, it is the responsibility of the Provider to maintain proper clinical care, proper compliance with HIPAA standards, and proper financial management of the medical practice.

5.10  Software Modifications.  Unless specifically agreed to in writing, MOO is under no obligation to any Customer, to provide custom or other changes to the software.  Custom software code that benefits a majority of our customers may be done with or without charges to the requesting Customer.  Custom software code that benefits an individual Practice only will be charged to that Customer upon written terms agreed to by MOO and the Customer.  MEDICAL OFFICE ONLINE WILL HAVE COMPLETE DISCRETION IN ALL DECISIONS REGARDING POSSIBLE SOFTWARE MODIFICATIONS, AND IS UNDER NO OBLIGATION TO MAKE ANY MODIFICATION, EVEN UPON AN OFFER TO PAY FOR SUCH MODIFICATION.  

5.11  Data Import and Export.  Importing of data from the Customers existing software may be done at MOO’s discretion.  If the Customers data file, or data file structure is non conforming to today’s standards, MOO reserves the right to refuse to import said data. Custom programming, or third party data exchange services may be required and will be at an additional cost.

5.12  Support.  The MOO service supports a limited hardware and software set. The supported browser is Microsoft Internet Explorer (6.0 or higher). The supported operating system is Windows XP. The currently supported Signature pad is Topaz Sig Gem. The supported card scanner is ScanShell.  A variety of brand name, mainstream printers (but not all printers) are also supported.

6. CUSTOMER OBLIGATIONS

6.1  Warranties of Customer.

6.1.a  General.  Customer represents and warrants that the performance of its obligations and use of the Service by Customer, authorized Users, affiliates, or patients, will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties.

6.1.b  Breach of Warranties.  In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, MOO will have the right, in its sole reasonable discretion, to suspend immediately any related Services if deemed necessary by MOO to prevent any harm to MOO and its business.  MOO will provide notice and an opportunity to cure, if practicable, depending on the nature of the breach.  Once cured, MOO will promptly restore the Service(s).

6.1.c  CUSTOMER INDEMNITY.  CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS MOO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, FROM AND AGAINST ANY CLAIM ARISING FROM: (A) BREACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT; (B) ANY ERRORS OR INACCURACIES CONTAINED IN THE PATIENT DATA OR PRACTICE DATA AS DELIVERED BY CUSTOMER TO MOO; (C) ANY MEDICAL TREATMENT, DIAGNOSIS, OR PRESCRIPTION RENDERED BY CUSTOMER OR ITS AGENTS (INCLUDING PHYSICIANS AND HEALTHCARE PROFESSIONALS); AND (D) CUSTOMER'S MODIFICATIONS OF THE DOCUMENTATION PROVIDED THAT SUCH CLAIM WOULD NOT HAVE ARISEN BUT FOR SUCH MODIFICATIONS.

6.2  Compliance with Law.  Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement.  Customer acknowledges that MOO exercises no control whatsoever over the content of the information passing through Customer’s site(s) and that it is the sole responsibility of Customer to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations.

6.3  Restrictions on Use of Services.  Customer shall not, without prior written consent of MOO (which may be withheld in its sole discretion), resell the Services to any third parties.

6.4  Patient Release.  It is the sole responsibility of the Customer to inform the patient and document by a signed permit in their database that the patient is aware that their record is being transmitted over the Internet to a secure remote storage site.

6.5  Outside Licenses.  We want MOO and your office to be in compliance with all copyright laws pertinent to the service we provide. Therefore, we require your office to purchase and retain a  current, licensed paper, or electronic version of the CPT codes, ICD9 codes and HCPCS codes (optional if you do not use HCPCS). If there are other licenses and their associated fees, which we are not aware of, your office will be responsible for the expenses relevant to your office.

6.6  Outside Utilities.  Medical Office Online has gathered a list of utilities that we recommend and require you use to optimize your Medical Office Online system. You must acquire these utilities through third party vendors. Medical Office Online does not make any guarantees regarding their performance.

6.7  Security Requirements.  Medical Office Online has determined that certain steps in the software and in office workflow are required by the Customer’s staff to properly handle protected health information (PHI) as defined by the Federal HIPAA Regulations.  MOO is not liable if a Customer misuses the MOO service pertaining to these requirements.  Furthermore, MOO does not accept liability for steps we feel are adequate, because of the changing and evolving interpretations by regulatory bodies.

6.8  Username and Password Protection.   The security of Protected Health Information (PHI) is directly related to the diligence of the Customer’s staff and the Customer patients in handling usernames and passwords.  MOO Software provides all the tools for successful protection of PHI.  It is, however, the sole responsibility of the Provider to implement security policies and to monitor them to assure a successful outcome.  MOO offers unlimited training and customer support in the area of Username and Password protection.  Patient Access opens additional areas of risk for protection of PHI, and proper handling of patient education regarding security and access is also the Customer’s responsibility.

7. LIMITATIONS OF LIABILITY

7.1  Consequential Damages Waiver.  Except for a breach of Section 4.1 (“Confidential Information”) of this Agreement, in no event will either party or its affiliates be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.

7.2  Basis of the Bargain; Failure of Essential Purpose.  The parties acknowledge that MOO has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

8. TERMINATION

8.1  Termination for Cause.  Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after the Effective Date of Notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after written notice from MOO; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

8.2  Liability for Termination.  Neither party will be liable to the other for any termination of any Service or this Agreement in accordance with its terms.  In the case of Customer’s termination or cancellation without cause, Customer shall be immediately liable to MOO for all charges due through the end of the Term.

If cancellation is due to an increase in MOO prices, the Customer will be allowed to utilize an Early Termination Buyout payment (see Section 8.5) and payout the next 4 months of the Term of their contract at their current rate.

8.3  Effective Date of Termination.  Unless otherwise stated in this Agreement, termination will be effective at the end of the thirtieth (30^th) day after the date of written notice of termination.  Upon the effective date of termination of this Agreement:

8.3.a  MOO will immediately cease providing the Service(s).

8.3.b  Any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due and payable.  Such payment obligation may include an Early Termination Buyout payment as defined in Section 8.5 below.

8.3.c  Within thirty (30) days after such termination, each party will return all Confidential Information of the other party in its possession (or destroy it, keeping only such copy as is needed for historical files) and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements.

8.3.d  Upon request, and at Customer’s expense, Customer data will be exported and saved to portable media, and provided to Customer, pursuant to Section 11.2.

8.4  Survival.  The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4.1, 4.2, 7, 8, 9, and 10.

8.5  Early Termination and Buyout Payment.  If a Customer wishes to terminate their MOO Service before the end of the Initial or any Renewal Term, Customer will be able to “buyout” the remainder of the Term.  The Buyout Payment for the Provider, will be four additional months of Provider Service Fees, or the Fees owed for the remainder of the current Service Agreement Term, whichever is less.  Individual User Fees may not be “bought out” during the Initial Term of the Agreement.  After the initial term, they may be bought out for a similar four months of User Fees.

8.6  Liability on Termination.  At the end of any service Term or Early Termination, MOO will require an executed Release from Liability.  This document will release MOO from responsibility to provide MOO service to the MOO Customer beyond the Term, for any purpose including, but not limited to, clinical care, billing functions, and other HIPAA obligations.  Regular monthly fees will be charged and Customer agrees to pay such charges, until such release is executed.

8.7  Post Termination Service.  MOO will allow Customers to retain non-edit access to their data at their database for a reduced monthly service fee.  (See Section 2.11.)

8.8  Post Termination Patient Access Service.  MOO will allow Customer’s patients to retain non-edit access to their data at the terminating Customers database.  (See Section 2.12.)

9. MISCELLANEOUS PROVISIONS

9.1  Force Majeure.  Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of reasonable commercial efforts to promptly correct such failure or delay in performance.  If MOO is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of continuing force majeure event, Customer may cancel the Service(s), but there shall be no liability on the part of MOO.

9.2.  Marketing.  Customer agrees that during the term of this Agreement MOO may publicly refer to Customer, orally and in writing, as a Customer of MOO.  Any other reference to Customer by MOO requires the written consent of Customer.

9.3  Government Regulations.  Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

9.4  No Third Party Beneficiaries.  MOO and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer.

9.5  Governing Law; Dispute Resolution.

9.5.a  Governing Law.  This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Missouri, USA.

9.5.b  Arbitration.  Any dispute or controversy regarding the operation or terms of this agreement shall be settled or tried by arbitration in accordance with the current rules of the American Arbitration Association.

9.5.c  Punitive damages; Expenses.  The arbitrators will not have the authority to award punitive damages to either party.  Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration.

9.5.d  Award is Final; Appeal.  The decision of the Arbitration Panel will be the sole and exclusive remedy between the parties regarding any and all claims and counterclaims with respect to the subject matter of the arbitrated dispute.  The decision of the Arbitration Panel will not be appealable, will not be subject to collateral review by any Court, and will not be used by the parties in any proceeding or forum that is not subject to this Agreement with the only exception being that either party may appeal a final arbitration decision to a federal court with jurisdiction, or alternatively to any appropriate judicial authority, where there is a final decision in excess of $100,000 and/or a decision that has a financial impact on the party’s operations in excess of $100,000.

9.5.e  Matters Not Subject to Arbitration.  The matters which, as referred to above, are not subject to the general rule set forth herein regarding the arbitration of disputes include those referred to in Section 6.1 of this Agreement, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Customer’s failure to pay for Services in accordance with this Agreement, which may be brought in a state or federal court in the United States with jurisdiction over the subject matter parties.

9.6  Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.  The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

9.7  Assignment.  Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without prior written consent of MOO, and any attempted assignment or delegation without such consent will be void.  MOO may assign this Agreement in whole or in part.  MOO may also delegate the performance of certain Services to third parties.  This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

9.8  Notice.  Any notice or communication required or permitted to be given hereunder may be delivered by secure Internal MOO email, by hand, deposited with an overnight courier, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the SP or at such other address as may hereafter be furnished in writing by either party to the other party.  Such notice will be deemed to have been given as of the date it is delivered to a courier, mailed, emailed, posted on your MOO database, faxed or sent, whichever is earlier (“Effective Date of Notice”).

9.9  Relationship of Parties.  MOO and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between MOO and Customer.  Neither MOO nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior consent, except as otherwise expressly provided herein.

9.10  Entire Agreement; Counterparts; Originals.  This agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.  Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by MOO without the need of further notice of objection, and shall be of no effect, or in any way binding upon MOO.  Once signed, any reproduction of this Agreement made by reliable means (e.g. photocopy, facsimile) is considered an original.  This Agreement may be changed only by a written document signed by authorized representatives of MOO and Customer in accordance with this Section.  For purposes of this Agreement, the term “written” means anything reduced to a tangible form by party, including a printed or hand written document, email or other electronic format.

9.11  Interpretation of Conflicting Terms.  In the event of a conflict between or among the terms in this Agreement, the SP, and any other document made a part hereof, the documents shall control in the following order: SP, this Agreement, and other documents.

9.12  Value Added Resellers.  MOO may establish relationships with MOO certified Value Added Resellers (VAR), Billing Companies Consultants, Partner Resellers or other physician service support vendors. These relationships expand resources and opportunities for our Customers. Any relationship your practice establishes with a certified MOO VAR is independent of all obligations and responsibilities contained in this Agreement. The VAR is not an agent of MOO and MOO is not an agent of the VAR.

10. TRADEMARKS.

10.1  It is agreed that MOO, MOO Medical, MedicalOfficeOnline, and other names are registered trademarks or Service Marks of Medical Office Online, Inc.

10.2  MOO will notify Customer in written guidelines of the MOO title, and emblem if any, which Customer is authorized to use.  Customer may not modify the emblem or title in any way.  Customer may use MOO Trademarks (which include the title, emblem, MOO trademarks and service marks) only within the scope of this Agreement and as described in the written guidelines MOO provides to Customer.

10.3  The royalty normally associated with non-exclusive use of our Trademarks will be waived for Customers in good standing.

10.4 Customer shall promptly modify any advertising or promotional materials that do not comply with MOO guidelines.  If Customer receives any complaints about Customer's use of MOO Trademarks, Customer agrees to promptly notify MOO.  When this Agreement ends, Customer agrees to promptly stop using all MOO Trademarks.  If Customer does not, Customer agrees to reimburse MOO for all legal fees or costs incurred for enforcement of its Trademark policies.

 10.5  Customer agrees not to register or use any mark that is confusingly similar to any MOO Trademark.

10.6  MOO Trademarks, and any goodwill resulting from Customer's use of them, belong to MOO.

11. DATA PROVISIONS

11.1  Ownership of the Data.  All business data obtained by the Customer is the property of the Customer. This includes patient clinical, financial and insurance related information.  How the data is presented (i.e. the forms and software programming that presents the data) is the function and property of MOO.

11.2  Exiting MOO.  If a Customer leaves the MOO service, upon Customer’s request and at Customer’s expense, MOO will make the raw data available in an Excel file, or another similar raw data export format, for a reasonable fee.  Except in the case of very large or complex data sets, this fee should be approximately the same as the New Subscriber Setup Fee currently being charged, but it is not guaranteed. 

11.3  Data Access.  If there are disputes between Medical Office Online and the customer, which have not been resolved through normal notice and cure resolution steps, the customer’s data will always be accessible for clinical and financial use.  New entries will not be able to be made until resolution of the dispute.

11.4  Medical Office Online Data Access.  For purposes of software modifications, improvements and debugging, Medical Office Online or its agents has the right to enter your database at any time.  This access to your information will be strictly for the purposes mentioned herein, and in full compliance with HIPAA regulations.

11.5  Additional Data Storage.  The basic MOO subscription comes with 1Gb of storage, hosted on two servers in two different locations.  Additional Data Storage Service (“ADS Service") is a MOO service providing additional storage space for your clinical and financial data, and is available at an additional charge (see Section 11.6 below).  MOO reserves the right to implement guidelines concerning Additional Data Storage Service, and update those guidelines as needed.  Your continued use of the Additional Data Storage Service constitutes your acceptance of the then current guidelines.

11.6  Additional Data Storage Fees.  The fees for Additional Data Storage will be those in effect during your original SP (Signup Process).  The fees may be changed from time to time, and will become effective at the time of any subsequent renewal of your MOO Service.  The fees for any newly added storage, will go into effect on the 1^st of the month following the beginning of use, of each additional 1 Gb of such Additional Data Storage.

11.7  Data Import Expectations.

11.7.a  MOO will import patient demographic and insurance information, as long as it is provided in a standard .csv (comma separated value) text file, or an Excel spreadsheet file.  Standard charges will apply.

11.7.b  For an additional fee, MOO may import supplementary data (either additional patient clinical or receivable balances) from prior electronic files, as long as Customer provides MOO with organized data files, either as csv (comma separated value) text files, or Excel spreadsheet files.  Charges will be on a Time and Material basis, at our current data import labor rates.  Please note that it is not part of the MOO regular service to obtain export files from your existing system.  If MOO does participate in obtaining those files, it will also be done on a Time and Materials basis.  If possible, an estimate of that cost will be provided prior to commencing work, and all work must be paid for in advance.

12. SOFTWARE OWNERSHIP

12.1  Ownership of the Source Code.  As assurance of continued functionality of your practice, we will guarantee your office a copy of the source code which could be modified by IBM/Lotus Notes programmers should Medical Office Online go out of business or sell the company and the purchasing company would not support our software.  This copy of the source code is only a license and does not give any ownership rights to the source code to your practice.  Any and all changes to the source code by any and all practices, become the property of Medical Office Online, Inc., or its successors or assigns, and a copy of the changed code must be provided to Medical Office Online upon request.

12.2  Source Code Transfer Rights.  Customer may not resell, commercially or otherwise, the original source code obtained pursuant to Section 12.1, or source code modified by you or your Practice successors.  If someone purchases your Practice, you may include the Medical Office Online source code license to continue patient care.  When patient care requirements cease, rights to the license is terminated.

Authorized representatives of Customer and MOO have read the foregoing and all documents incorporated therein and agree and accept such terms. MOO and Customer hereby demonstrate their agreement to comply with the terms in this document, the Master Service Agreement, by signing the SP.

BUSINESS ASSOCIATES PERSONAL HEALTH INFORMATION (PHI)

PRIVACY AGREEMENT

FOR MEDICAL OFFICE ONLINE - FROM THE PROVIDER

I, the undersigned, representing the undersigned named practice, understand that our practice may be given certain Personal Health Information from Medical Office Online.  We agree:

1.        To establish the permitted uses and disclosures of Protected Health Information and to use the information for our own proper clinical and business management and administration.

2.        To refrain from using or disclosing the Protected Health Information other than as permitted by the contract or as required by law.

3.        To use appropriate safeguards to prevent use or disclosure of the information other than as provided for in the contract.

4.        To report any use or disclosure not provided for in the contract and to advise Medical Office Online  when violations have occurred

5.        To ensure that our agents and sub Business Associates that receive Protected Health Information from the business associate agree to the same restrictions and conditions that apply to the business associate.

6.        To provide Protected Health Information in accordance with the individual’s right to access, inspect, and copy their health information, if the business associate maintains a designated record set (some exceptions apply).

7.        To provide Protected Health Information in accordance with the individual’s right to have the covered entity make amendments to protected health information about them in a designated record set (some exceptions apply).

8.        To provide information required to make an accounting of disclosures of Protected Health Information, where such disclosures were made for purposes not related to treatment, payment, and healthcare operations (some exceptions apply).

9.        To protect or return and/or destroy all Protected Health Information in any form at the termination of the contract.

10.     In the event of a material breach of the business associate’s obligations, the contract authorizes and may lead to termination.

11.     You further understand that Medical Office Online discloses this information to your firm only to help Medical Office Online carry out its health care functions – not for any independent use by your firm.

BUSINESS ASSOCIATES PERSONAL HEALTH INFORMATION (PHI)

PRIVACY AGREEMENT

FOR THE PROVIDER - FROM MEDICAL OFFICE ONLINE

We, the undersigned, representing Medical Office Online, understand that our firm is being given certain Personal Health Information from the provider offices named below. We agree:

1. To establish the permitted uses and disclosures of Protected Health Information and to use the information for our own proper clinical and business management and administration.

2. To refrain from using or disclosing the Protected Health Information other than as permitted by the contract or as required by law.
   
   
3. To use appropriate safeguards to prevent use or disclosure of the information other than as provided for in the contract.
   
   
4. To report any use or disclosure not provided for in the contract and to advise your practice when violations have occurred.
   
   
5. To ensure that our agents and sub Business Associates that receive Protected Health Information from the business associate agree to the same restrictions and conditions that apply to the business associate.
   
   
6. To provide Protected Health Information in accordance with the individual’s right to access, inspect, and copy their health information, if the business associate maintains a designated record set (some exceptions apply).
   
   
7. To provide Protected Health Information in accordance with the individual’s right to have the covered entity make amendments to protected health information about them in a designated record set (some exceptions apply).
   
   
8. To provide information required to make an accounting of disclosures of Protected Health Information, where such disclosures were made for purposes not related to treatment, payment, and healthcare operations (some exceptions apply).
   
   
9. To protect or return and/or destroy all Protected Health Information in any form at the termination of the contract.
   
   
10. In the event of a material breach of the business associate’s obligations, the contract authorizes and may lead to termination.

11. We further understand that your practice discloses this information to MOO only to help your practice carry out their health care functions – not for any independent use MOO.